Written by attorney Linda Jane Chalat

Consequences of Sexting Should Not Be Ignored

This time of year, most middle school and high school students are facing the challenges of re-entering the social fabric of school life. While many students do so with only the occasional bout of angst, some succumb to peer pressure and make poor decisions which may have lasting consequences.

One particularly concerning behavior is that of "sexting" - the sharing of nude photos, usually by cellphone. But “sexting" may also be sent on any media-sharing device or technology - including email and the Web. For many youngsters, the practice is a private act with no serious ramifications, but teens need to understand that there may be serious legal and psychological consequences.

Common scenarios are students responding to pressure in the form of cyber bullying or coaxing from a boyfriend or girlfriend. Sometimes it is simply impulsive behavior, flirting, or even blackmail.

Research conducted by The National Campaign to Prevent Teen and Unplanned Pregnancy last year revealed that 20 per cent of teens in the United States admit that they have sent or posted online lewd photos or video of themselves. According to the national study, most teenagers were sending the explicit messages to friends. There have been reports of students losing jobs or college scholarships as a result of being identified in sexually-suggestive pictures that have appeared on the internet. But even more disturbing is the threat of criminal prosecution.

Laws vary from state to state, each jurisdiction enforces the law differently, and the applicable laws were written before sexting was even possible. With sexting, the same minor can be both perpetrator and victim when producing and sending photos of him or herself – a situation which leads to wide differences in prosecution.

The message to youngsters should be a clear one: do not take or send nude or sexually suggestive photos of yourself or anyone else. If you do, even if the photos are of you or you pass along a photo taken by someone else, you could be charged with producing or distributing child pornography. If you keep the photos on your phone or computer, you could be charged with possession. If they go to someone in another state, a very easy step with internet access, it is a federal felony.

And the threat is not an idle one. Two Florida teenagers were prosecuted for taking sexually explicit photos of themselves and "distributing" them in violation of child-pornography laws. And earlier this year, a Florida state appeals court ruled 2-1 to uphold their conviction. The two took more than 100 digital photos of themselves naked and engaged in unspecified 'sexual behavior.' The female was 16 and the male 17 at the time of the photography sessions. The two sent the photos from a computer at her house to his personal email address. Neither teen showed the photographs to anyone else. Yet they were both charged with "producing, directing or promoting" child pornography, and he was charged with an extra count of possession of child pornography.

The case establishes that in Florida it is legal for two minors to have sex, but "they're criminals if they document it." Criminals, and yet - as the appeals court itself wrote - "children ... not mature enough to make rational decisions concerning all the possible negative implications of producing these videos." The appeals court reasoned that Florida law requires the state to prevent the production and distribution of photos like these as a form of child exploitation, regardless of whether their producers were minors or adults.

Last year, six high-school students in Pennsylvania were arrested on child pornography charges. Three were girls who allegedly took pictures of themselves, were charged with manufacturing, disseminating or possessing child pornography. The other three were boys from the same school who were found with the explicit photos on their mobile phones by police, and were charged with possession of child pornography. However, the American Civil Liberties Union brought suit in federal court against the Pennsylvania district attorney who threatened to charge the three girls, and the 3rd Circuit Court of Appeals said the prosecutor could not charge the girls merely for appearing in a photograph without evidence that they had engaged in distributing it.

In 2008, an Ohio cheer leading coach, age 19, was convicted of indecency charges after taking a topless photo of herself and a 15-year-old girl. And in Texas, a 13-year-old boy was arrested on child pornography charges after receiving a nude photo of a fellow student on his mobile phone. In 2007 girls at Castle Rock Middle School in Colorado took naked pictures of themselves on their cellphones and then sent them to their boyfriends. The boys then forwarded the pictures to their friends. Dozens of students at the school, which includes seventh and eighth grades, receive d the photos. The Internet Crimes Against Children team of Castle Rock police investigated the incident, but no charges were reported. Cases have also been prosecuted in Connecticut and Virginia in 2005 and in India and New York in 2004.

What can parents do? Talk to your child before a problem develops. Emphasize that the internet is not a private place for four concrete reasons:

Searchability – anyone can search and probably find any image once it goes online;

Persistence – anything that is placed on the internet essentially never disappears, webpages are copied and cached so ask your teen is this really an image you want your grandchildren to come across?

Replicability - once you distribute it, someone will share it - in emails, IMs, profiles, on file-sharing networks, etc.

Invisible audience - you don't know who you're sharing it with; even if your page is private, you don't know what "friends" will do with it.

If your children have sent any nude pictures of themselves, stop the conduct immediately. Explain that they are at risk of being charged with producing and distributing child pornography. If they have received a nude photo, make sure they do not send it to anyone else.

Some experts advise that “sexting" should be reported to your local police, but consider that, while intending to protect your child, you could incriminate another, and possibly your own child. A better approach may be to talk to a lawyer after discussing the matter first with the youngsters and other parents. If malice or criminal intent is involved, you may wish to seek legal advice as to whether criminal charges are likely, and how best to proceed when contacting the police or other authorities in your jurisdiction.

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