Criminalizing Pubescent Exploration or Curtailing Dangerous Behavior? – How Should Child Pornography Laws Apply to Teenagers Engaged in the Practice of Sexting?

Stephen Dushko, Editing Chair for the AGLR Fireplace Blog, Staff Writer

For better or worse, the digital age has provided teenagers with a plethora of new means of exploring their nascent sexuality.  Prominent among these practices is that of “sexting.”  According to the plaintiffs in the case Miller v. Skumanick,[1] “sexting” is “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet.”[2]  According to studies cited by the court in Miller, about twenty percent of Americans aged thirteen to nineteen have “sexted.”[3]  This kind of behavior creates a singular set of problems, particularly because it is engaged in by minors.[4]  While laws covering child pornography were aimed at protecting minors from predatory activities by adults, the laws do not exempt minors themselves from criminal liability for possessing or distributing “pornographic material.”  Thus, teenagers who engage in activities like “sexting” may, perhaps unknowingly, be risking exposure to sexual predators and the full force of the law.[5]

Miller provides an instance where the effect of the law may be more deleterious than the conduct it punishes.[6]  Among the images involved in that case were those of Marissa Miller who, at age twelve, had taken photographs of herself and a friend, from the waist up, wearing bras.[7]  Skumanick, the District Attorney for Wyoming County, PA, promised to prosecute Miller, as well as other students involved in images he claimed fit the definition of “child pornography,” unless they submitted to probation, fines, and a six-to-nine month program geared toward counseling and education.[8]  Miller, her mother, and an anonymous mother and daughter, threatened by the possibility of prosecution, sued.  They obtained a temporary restraining order on March 30, 2009.[9]

Due to the great interest in protecting the welfare of children, the penalties for possession and distribution of child pornography are harsh.[10]  However, when those penalties have the potential to be turned against the children they seek to protect, it cannot rightfully be said that such interests are in fact being served.  This is not to say that all teen activities involving “sexting” or like practices are benign.  In Florida, eighteen-year-old Philip Alpert landed himself a felony conviction and a place on the sex offender registry for forwarding a naked picture of his then-girlfriend to her friends and family after the young couple had gotten in a fight.[11]  Alpert will remain on the sex offender registry until he is forty-three.[12]  The consequences were even more dire for Jessica Logan, a teenager who hung herself after her boyfriend forwarded a nude photo meant only for him to students in several high schools.[13] Continue reading “Criminalizing Pubescent Exploration or Curtailing Dangerous Behavior? – How Should Child Pornography Laws Apply to Teenagers Engaged in the Practice of Sexting?”