Pennsylvania Considers Law Reducing Penalties for Teens Caught Sexting

June 7, 2010 by David S. Seltzer

I’ve written here several times before about the legal issues surrounding the practice among teenagers of “sexting.” That’s when teenagers take nude or suggestive pictures of themselves and send them to their boyfriends, girlfriends or friends. As more kids have access to camera phones, webcams and other technology, this has become a growing issue for parents and school officials. It has also come to the attention of Miami cyber crime criminal defense attorneys like me because in many jurisdictions, teenagers are prosecuted for possession or distribution of “child pornography,” despite the fact that this is all voluntary, peer-group-member activity, and the “perpetrator” and “victim” are often the same person. A CBS news article from June 5 explains how the issue is being addressed by Pennsylvania prosecutors, as well as by legislators hoping to pass a law to better deal with the practice.

The article focuses on two separate sexting cases that came out of Susquenita High School outside Harrisburg, Pennsylvania. Ten people under the age of 18 have been charged with child pornography crimes in those cases in the past year, the article said. The teens were accused of using cell phones to take, send and receive inappropriate pictures of each other, plus one video. All of them were charged with one felony count of a child pornography crime. Some of the kids were able to avoid penalties by taking a five-week course on victimization and violence, performing community service and serving probation. However, one defendant is fighting the charge rather than pleading guilty. His attorney argues that penalizing teenagers is inappropriate for the situation and overzealous, and that the practice should not be a crime at all. Pennsylvania state legislator Seth Grove is claiming the middle ground with a recently introduced bill that would reduce sexting penalties for teenagers to a misdemeanor.

As a Fort Lauderdale cyber crimes criminal defense lawyer, I support any legislation that keeps teenagers from facing life-altering felony charges for sexting. But, like the defense attorney described in the CBS story, I question whether teen-to-teen sexting should be considered a crime at all. As numerous observers have pointed out, sexting is not a good idea. Pictures get out of the hands of their original owners quickly, which can embarrass the kids in the pictures. Even worse, the pictures can end up used as child pornography by total strangers who consume such images. But these are reasons to be honest with teenagers about the risks before sexting happens, and delete the images when they’re found. It is certainly not a reason to turn kids who are exploring their sexuality into criminals and, in some states, registered sex offenders. It’s worth noting that the same behavior between consenting adults is perfectly legal (though again, probably not a good idea).

The Supreme Court has made child pornography illegal, an exception to the First Amendment, because producing it means committing the disturbing crime of sexually exploiting a child. This logic does not hold when teenagers voluntarily take pictures of themselves and send them to other teenagers. In that situation, there is no exploitation and there is no imbalance of power between the people involved. As the Pennsylvania legislator argued, felony charges are too severe for such a situation. The teen would then graduate and start adulthood with a felony criminal charge on his or her record, which can limit opportunities for college financial aid, military service and jobs. But changing this “crime” to be charged as a misdemeanor in juvenile court misses the vital question: Why is this a crime? As a South Florida cyber crimes criminal defense attorney, I have not yet found a convincing answer to that question.