Sexting Porn

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Sexting Porn
“Sexting” is a term that refers to the exchange of sexually explicit or sexually suggestive messages or images between individuals using electronic messaging. Teenage sexting is a controversial legal topic because the act of taking nude or semi-nude pictures of a minor technically constitutes child pornography under federal law, even when those pictures were self-portraits taken by the minor in question. This Comment argues that the prosecution of sexting under federal child pornography law constitutes the criminalization of adolescent exploration of sexuality and that states should adopt their own sexting-specific laws to address teenage sexting in a manner that respects teenagers’ personal freedom and bodily autonomy. Part I of this Comment looks at the background of teen sexting, including the long history of teenage sexual expression. Part II examines the current state of the law across both federal and state levels. Part III observes the harm caused by the current law. Part IV describes potential solutions to the problems caused by the current law and proposes a new model law that is better tailored to the specific problems found in teen sexting.
Jane Doe was a regular fourteen-year-old girl living in southern Minnesota—until she was caught “sexting.” [2] Jane had texted a revealing picture of herself to a boy she liked at school. [3] Without Jane’s knowledge or consent, that boy went on to distribute Jane’s revealing selfies to Jane’s classmates in school. [4] In January 2018, law enforcement officers found out about the revealing photographs, [5] and local prosecutors immediately charged Jane with felony distribution of child pornography, despite the fact that the revealing selfies were distributed against her will. [6] If Jane Doe is convicted, or even if she pleads guilty to a lesser charge, Jane Doe will be required to register as a sex offender for ten years simply because she took a photograph of her own body. [7]
While this situation might seem like an extreme outlier, cases like this one are all too common in the American criminal justice system. In a similar case, Iowa prosecutors threatened to charge a fourteen-year-old girl with sexual exploitation of a minor after she sent two pictures of herself in her underwear to another student. [8] Such cases are not limited only to girls: in North Carolina, a seventeen-year-old boy had his cell phone seized by police during an investigation. [9] When the police searched the phone, they found sexual pictures of the boy and his seventeen-year-old girlfriend. [10] Although two teenagers that age could legally have sex in North Carolina, it was (and still is) a crime for seventeen-year-olds to take sexual photographs of themselves. [11] North Carolina prosecutors immediately charged the boy with five counts of sexual exploitation of a minor. His name and crimes were published in the local newspaper and on television, and he faced the possibility of a lifetime as a registered sex offender. [12] In another shocking and grotesque case, a seventeen-year-old boy in Virginia was accused of texting a picture of his penis. [13] Police obtained a warrant to take the boy to a hospital and forcibly induced an erection to compare the boy’s penis to the one shown in the photograph. [14] Unfortunately, such criminalization of young people’s sexuality has become all too common—in 2018, the most common age for a registered sex offender was a mere fourteen years old. [15]
Despite the recent abundance of such prosecutions, teenagers engaging in this type of consensual sexual activity is not a new phenomenon. A study in 2008 sparked media outrage by revealing that one in five teenagers had sexted—that is, they sent or received sexually explicit text messages. [16] Teenagers soon became embroiled in legal battles when prosecutors throughout the country began to bring child pornography charges against teenagers who had sexted. [17] Because federal child pornography law makes no exceptions for self-produced images, teenagers can face felony charges, prison time, and even compulsory registration as sex offenders simply for taking a picture of their own bodies. [18]
This Comment argues that the prosecution of sexting under federal child pornography law constitutes the criminalization of adolescent exploration of sexuality and that states should adopt their own sexting-specific laws to address teenage sexting in a manner that respects teenagers’ personal freedom and bodily autonomy. Part I of this Comment looks at the background of teen sexting and the law, including the history of teenage sexual expression, the modern prevalence of sexting among teenagers, and the numerous causes of sexting. Part II examines current state and federal law. Part III explains the harm caused by the current law, including the violation of teenagers’ bodily autonomy, the unjustifiably harsh penalties imposed on teenagers, and the failure of the law to deter sexting. Part IV describes potential solutions to the problems caused by the current law and argues that both state and federal laws must be reformed to prevent future injustices. Ultimately, this paper concludes that sexting laws prosecute a victimless crime, impose punishment where there has been no wrongdoing, and inflict overly harsh punishments on teenagers in a misguided attempt to crack down on what amounts to no more than a natural function of teenage sexual development. In other words, the kids are alright, and the kids deserve better.
“Sexting” currently encompasses a wide range of behavior and refers to any messaging that utilizes internet or phone service, where either the messages or images contain sexual content. [19] For the purpose of this Comment, “sexting” will be used in a very specific context that aligns with the legal community’s general understanding of the concept. In relation to the law, “sexting” refers to “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.” [20]
Before looking at the law as applied to modern teen sexting, it is essential to contextualize sexting in several distinct areas. These background elements, taken together, demonstrate that teenagers have always engaged in sexual experimentation for a plethora of biological and environmental reasons that are not unique to either cell phones or the modern era. The first section below recounts the history of sexualized messaging and teenage sexual expression, while also addressing whether modern sexting can be placed into historical context. The second section looks at the causes of teen sexting. These sections together clearly illustrate that teenage exploration of sexuality is neither new nor scandalous—rather, it is a consistent and natural part of teenage development.
Teenagers engaging in sexual activity is not a new phenomenon: stories centered around teen romance date back hundreds of years, and historical surveys indicate that teenagers have been consistently sexually active for at least the past half-century. [21] Perhaps surprisingly, modern American teenagers are currently having less sex than at any time since the 1970s. [22] A study conducted in 2014 indicated that teen pregnancy has decreased to a lower rate than at any time since the 1970s. [23] Yet, the impression given by the media has consistently been that teenagers are becoming more sexually provocative and more sexually active each year, despite the steady decline in teenage sexual activity over the years. [24]
Studies disagree as to the extent of modern teen sexting: the highest recorded frequency indicates that up to 71 percent of teenagers sext, while the lowest recorded frequency indicates that only 4 percent of teenagers sext. [25] Thus, the growing trend demonstrated by research is far from the “epidemic” cited by popular news outlets. [26] The media’s overblown and frantic response to teen sexting can be linked to the technological anxiety that characterized the early and mid-2000s, [27] the increased amount of news coverage available on television, [28] and the sensationalized agenda-setting common in televised news programming. [29] Some teenagers have responded to the media outcry to say that sexting is just “not that serious.” [30] Teen sexuality and sexualized communication are not new phenomena; far from being an “epidemic” of teenage sexuality run wild, sexting is simply the most recent iteration of teenagers’ timeless developmental desire to explore their own sexuality.
Even the act of sending sexualized messages and images is not a new phenomenon. History provides us a plethora of examples. One erotic portrait from the seventeenth century depicted a young woman with her breasts exposed, gently washing a string of sausages. [31] Voltaire famously wrote letters in the mid-1700s to a woman with whom he had a romantic relationship, in which he described his sexual organs and sexual acts. [32] Warren Harding wrote letters to his mistress in the early 1900s in which he described his genitals using the nickname “Jerry.” [33] James Joyce wrote similarly erotic letters to his wife in the early 1900s, in which he referred to his wife as “naughty,” used profanity, wrote erotic descriptions, and requested that his wife write him something of a similar nature in return. [34] Much like teen sexuality, sending sexualized images and messages is not a unique “sin” of our modern era but rather an old and common human activity that has only recently received heightened surveillance. The only “new” aspect of sexting is the technology through which sexualized messages and images are sent.
To fully understand the phenomenon of teen sexting, it is essential to understand why teens engage in sexting behavior. Experts have identified two primary reasons why teens may choose to engage in sexting: first, teenagers explore their sexuality through common methods of communication; second, teenagers use sexting as a means of bonding with their romantic partners without becoming physically sexually active.
First, teenagers exploring their sexuality have easy access to new technology that enables them to explore their sexuality in the form of sexts. [35] Technology has become increasingly pervasive in society and more widely available to individuals of all ages. This is especially true among today’s adolescents with smartphones, whose access to the internet is substantially greater compared to previous generations. [36] Technology becomes widely available to adolescents during puberty, around the same time that physical changes in the brain and body cause young people to experience new and intense emotions—including sexual attraction. [37] Thus, sexting is primarily a result of readily available communications, imaging technology, and hormones. [38] Teens are using sexting, then, as a means of exploring their sexuality through technology because they are hormonally driven to do so and texting is such a common means of communication. [39] Moreover, sexting can be a healthy way for teenagers to explore romance, sexual attraction, and their own bodies in a safe way that does not require becoming physically sexually active. [40] This is why the vast majority of individuals who choose to sext report that the experience of sexting was an overwhelmingly positive one. [41] This is also why some adults choose to sext: adults sext even more frequently than teenagers, which casts doubt upon the argument that sexting only occurs among those too young to understand the potential risks. [42]
Second, teens often seek attention from a romantic partner or express their own romantic feelings through sexting. [43] Teenagers are more likely to sext if they are in a serious romantic relationship and are even more likely to sext if they are unable to see their partner in person, such as in long-distance relationships. [44] Indeed, some teens have described sexting as an activity for people who are in love as a way to express their romantic feelings. [45] Adolescent sexting behavior is significantly influenced by a teen’s romantic feelings for and relationship with the intended recipient of the sext. [46] Because sexting occurs as a natural [47] response to available technology and budding sexuality, many teens already flirt or hold romantic conversations over text—they may not even recognize when their own romantic texting has crossed the line into sexting. [48] For example, a teenager texting with someone they are romantically interested in might say, “What are you wearing?” “Oh, I’m just getting ready for bed.” “What do you wear when you sleep?” “Oh, I just sleep in my bra and underwear.” “Oh, really, I don’t believe you.” The teenager might take a photograph of themselves in their bra and underwear to “prove” this is how they sleep without realizing their flirtatious texts have crossed the line into sexting. [49]
Teenagers have always engaged in sexual exploration and expression. Despite the media frenzy surrounding the use of cell phones in teens’ sexual expression, sexting is not a radical expansion of the sexualization of teens. [50] Rather, sexting is the result of teens’ developmental desire to explore their sexuality, to gain attention from potential or existing romantic partners, and to make choices about their own bodies. [51]
Due in part to the media’s response to teenage sexuality, state legislatures have begun to rapidly enact sexting-specific legislation. [52] The federal law that applies to sexting cases, however, has remained almost entirely unchanged. This Part addresses the state of current sexting law: the first section addresses federal law, while the second section addresses state law.
No federal laws specifically address sexting. [53] However, U.S. Attorneys looking to prosecute cases of teen sexting have relied heavily on another set of laws: those against child pornography. Teenagers caught sexting are typically prosecuted under 18 U.S.C. §§ 2251, 2252A(a)(2), and 2257A (together, referred to as the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003), which strengthened the enforcement and penalties against any obscene materials that depict children. [54] Under this law, the first offense of using a child to produce pornography holds a prison sentence of fifteen to thirty years. [55] If a teenager is caught sexting, the teenager can be charged under these laws; [56] the charge does not consider whether the teenager is the subject or recipient of the graphic image. [57]
Teenagers who are prosecuted for child pornography must also register with their state’s sex offender registry under the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which was established in 1994 as a method of tracking sex offenders. [58] The Adam Walsh Child Protection and Safety Act, which was published in 2006, also created a federal sex offender registry with which teenagers prosecuted under child pornography laws may be required to register. [59]
Federal child pornography law criminalizes the action of photographing a minor in any sexualized way, [60] but federal law does not consider the age of consent in any given state nor does it consider whether the image was self-produced. Ultimately, this means that two individuals under the age of eighteen could legally have sex, but if they were found in possession of any sexually explicit photographs of each other, they could still be charged under federal child pornography laws. [61]
States take one of three primary approaches to sexting laws. Some states have one or more sexting-specific laws. Other states do not have sexting-specific laws, but they do have nonconsensual pornography laws that prohibit the distribution of intimate photos without a user’s consent. Still other states have neither type of law: in these states, there are no laws regarding sexting or the distribution of private intimate photos. The map above demonstrates which stance each state has taken on this issue: adoption of sexting-specific laws, adoption of nonconsensual pornography laws only, or lack of adoption of any law on this topic.
As of 2018, approximately twenty states have passed sexting-specific laws. These states include Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Louisiana, Nevada, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Vermont, and West Virginia. [62] Most of these reforms simply offer less severe sentencing options. In Rhode Island, for example, sexting is a status offense [63] that is tried in family court. Yet the law explicitly states that the juvenile may not be charged under state child pornography laws, will not be deemed a “sex offender,” and will not be required to register. [64] However, some states have introduced fairly complex regulatory schemes that differentiate between different “types” of sexting: Colorado’s sexting law, for example, creates three tiers of offenders. [65] Under the first tier, teens who are approximately the same age and who exchange sexual images with the understanding of consent have committed a civil infraction and may be required to participate in an educational program. [66] Under the second tier, teens who possess an image of another teen without their permission have committed a petty offense, with the potential to rise to a Class 2 misdemeanor if the possessor has images of between three and ten separate persons. [67] Under the third tier, teens who distribute or post images of either themselves (if the recipient did not request the photograph and it caused the recipient emotional distress), or other teens (who had a reasonable expectation that the images would remain private), have committed a Class 2 misdemeanor. [68] That charge can be enhanced to a Class 1 misdemeanor if: (1) the poster had an intent to coerce, intimidate, or cause emotional distress; (2) the poster had previously been found guilty of a sexting offense; or (3) the poster had posted images of three or more separate persons. [69]
While not all states explicitly forbid teen sexting, the sharing or distribution of sexts without the user’s consent may still be barred in states with nonconsensual pornography laws. [70] “Nonconsensual pornography” refers to the sharing of another person’s sexually explicit or intimate images without his or her permission. [71] The term “nonconsensual pornography” describes the sharing of images originally obtained with consent that are later shared without the subject’s consent (such as when an intimate photograph is consensually shared with a single person, but the image is later shared with third parties without the subject’s consent). [72] Nonconsensual pornography is different from sexting. [73] Sexting occurs when an individual takes a sexually explicit photograph and shares that photograph with another person with both the knowledge and intent that the recipient will view the sexually explicit image. [74] However, if the recipient of that sexually explicit image were to share or distribute that image without the subject’s consent (by showing the image to others in person, texting it to others, sharing it online, or any other means of distribution that lack the subject’s consent), such an act would be an act of nonconsensual pornography. [75] Many states without sexting laws still criminalize the act of distributing sexually explicit photographs without the subject’s consent through nonconsensual pornography laws. [76] Other states have no sexting laws and also do not have any nonconsensual pornography laws. [77]
In states with sexting-specific laws, prosecutors may decide whether to prosecute under federal or state law. This allows prosecutors more flexibility in pressing charges that fit the nature of t
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