More State Legislatures Take Up Issue of How to Penalize Teenagers for Sexting

February 14, 2011 by David S. Seltzer

I’ve written here several times in the past about the issue of sexting among teenagers. From my perspective as a child pornography criminal defense attorney, I don’t believe teens should be prosecuted under child pornography laws for sexting, since those laws are typically designed for hardened adult criminals, not kids who made a dumb mistake. I’m pleased to say that in the early part of this year, more and more state legislatures have proposed bills that would draw that distinction, removing penalties or lowering them for kids caught sexting other kids. Proposals in New Jersey and Texas have gathered a fair bit of media attention, but legislatures in Ohio and South Dakota are also considering sexting laws.

Sexting is taking nude or explicit pictures of yourself or someone else and sending them as text messages with a phone or computer. As a rule, state criminal codes don’t have a way to handle this, so when these cases make it into the legal system, teenagers can face charges for making and possessing child pornography – usually a felony with lifelong sex offender registration requirements. In New Jersey, the state Assembly has already passed a law that would allow judges to sentence first offenders to education on the criminal and social consequences of sexting, including the possibility that the picture could be traded in the online child pornography underworld. Assemblywoman Pamela Lampitt, D-Camden, has also introduced bills that would require education in schools and with each new cell phone contract.

In Texas, the bill is similar, but more controversial. Judges would be authorized to send minors to anti-sexting classes, but at least one parent would also be required to attend. The state Senate’s proposed legislation would also lower sexting from a felony to a misdemeanor, taking away the penalties of two to 10 years in prison and lifelong sex offender registration. Juveniles convicted could petition to have the crime expunged from their records. Texas Attorney General Greg Abbott has endorsed the legislation.

As a cyber crime criminal defense lawyer, I think these laws are a step in the right direction. What’s missing: proposals that would take the offenses out of the justice system’s hands entirely unless they truly need to be there. Most kids caught sexting aren’t exploiting each other or themselves, in the way an adult criminal making child pornography might do. They’re exploring their sexuality, but in a way that could be socially, legally or personally dangerous. It’s appropriate for our society to discourage this behavior, but in a way that doesn’t send teens to prison, saddle them with sex offender registration or hurt their chances for college, military service and good jobs in the future. As a child pornography defense attorney, I believe schools and parents should take the front lines on sexting, and leave prosecutions for cases where there is some genuine criminal intent.

If you or your child are involved in a criminal case stemming from sexting or other child pornography-related offenses, you need help from an experienced attorney right away. Seltzer Law, P.A. can help. To set up a free consultation, call us anytime – 24 hours a day and seven days a week – at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email today.