Written by attorney Carina Castaneda

New sex crime: Sexting

Should we make sexting a punishable crime? Do these images constitute child pornography? Should sexting require the perpetrators, and/or the original victims, to register as sex offenders for life?

Sexting occurs when a sexually provocative image is sent or received by a cell phone text message. SB919 in California would allow “sexting" to be an expellable offense in the state. The bill’s sponsor Senator Ted Lieu stated that “it is a growing problem in California schools. He cited a study saying 1 in 5 teens reported sending or posting nude or semi-nude pictures and videos of themselves."

Several states have also attempted to crack down on teen sexting. New Jersey proposed a bill that if first time offenders were caught texting or posting sexually explicit photos online to complete a diversion program instead of being prosecuted.

In 2010, a California Sheriff issued citations to teenage boys who were charged with posting posting nude and semi-nude photos of underage girls online. These photographs were originally sent voluntarily by the alleged victims to the boys but were then circulated among an entire group of students. In addition, the boys posted them on at least one social networking site without their consent. These photos were removed at the request of the Sheriff’s Department.

In 2008, a Virginia assistant principal was charged with possession of child pornography after he had been asked to investigate a rumored sexting incident at the high school where he worked. In Fort Wayne, Indiana, a teenage boy was indicted on felony obscenity charges for allegedly sending a photo of his genitals to several female classmates. Two Ohio teenagers were charged with contributing to the delinquency of a minor for sending or possessing nude photos on their cell phones of two 15-year- old classmates

This issue is clearly being hotly debated nationally. For example should we make sexting a punishable crime? Do these images constitute child pornography? Should sexting require the perpetrators, and/or the original victims, to register as sex offenders for life?

The American Civil Liberties Union of Pennsylvania filed a lawsuit against Wyoming County District Attorney (DA) George Skumanich Jr. on March of 2009, for threatening teenage girls who were the subject of allegedly risqué photos with child pornography charges if they did not submit to counseling. The DA made an offer of probation if they attended sexual harassment program. The girls and their parents appealed and it became the first appeals court case concerning sexting.

The sending of sexually suggestive images involving nude or semi-nude underage girls and boys can lead to felony criminal charges and even federal crimes. Possible charges could include: sexual exploitation of a minor, possession of harmful matter depicting a minor engaging or simulating sexual conduct, more commonly referred to as child pornography and more.

Long considered an activity for young adults, sexting isn’t just for the kids. Many are aware of the escapades surrounding the sexting scandal of New York Representative Anthony Weiner. With Weiner’s professional life collapsing, the question if there is a criminal act is a non-issue. While Weiner emerged during the federal health care overhaul debate as one of the Democratic Party’s most effective and aggressive debaters, this recent debacle is likely to put a halt to his once promising career.

Long considered an activity for young adults, sexting usually refers to teens sharing nude photos via cell phones, but adults and teens should be aware of the serious legal consequences. Sending sexually suggestive photos of yourself or anyone else, criminal charge such as producing or distributing child pornography is possible. If you keep the image on your phone, you could be charged with possession of child pornography. If they go to someone in another state, it is a federal crime. Sexting can be done on any media-sharing device or technology.

The bottom line, stay alert when using digital media and the best protection is to be critical about what you upload and download.

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