Last year, news broke about a group of Pennsylvania teens who had been busted for "sexting," or sending sexual pictures by--you guessed it--text message. Over the next few months, similar charges were brought against teens in states including Connecticut, North Dakota, Ohio, Utah, Vermont, Virginia and Wisconsin.
So what was behind these prosecutions? Basically, new technology combined with old laws and a growing paranoia about the consequences of teen sex, and the threat posed by sex offenders. This is paranoia which has allowed the mushrooming of a legal system favoring punishment over rehabilitation, the widespread adoption of zero tolerance policies for sex offenders, and an expanding definition of what a sex offender is.
In light of this, countless teens and young adults are behind bars or saddled with lifetime sexual offender status. And while some of these teens are dangerous criminals, many have simply gotten a blow job, texted a naked picture of themselves, or had a consensual sex with another kid who happened to be a few years younger, if not the exact same age!
Defenders of this crackdown claim that punitive laws need to be enforced to protect children. Yet many fail to see how contradictory such laws can be when applied to people who are little more than children themselves. But because Americans tend to be extremely uncomfortable with the idea of teen sexuality, and since no criminals are more vilified than are sex offenders, it has become easier than ever to demonized anyone, no matter how young, who is involved in something called a sex crime. That is true even if the illegality of the crime in question is, well, questionable.
But for arguments sake, let's just say that teens accused of sex crimes, are indeed criminals in need of punishment. What then? Even in cases where the law should be involved, the current tactics are severely lacking. A 2009 study conduced by the National Institute of Justice and Rutgers University, found that the ever increasing legislation requiring sex offender registration, residency restrictions, and mandatory minimums had not made a measurable difference in deterring future sex crimes against children. But studies like this are ignored by terrified community members and by politicians who want to look tough on crime. Rather than fighting to revamp the system, many people still argue to enact more and more regulations.
Of course, most supporters of anti-sex offender legislation don't have the average teen in mind. Many are simply shellshocked by horrific tales of child molesters who strike at random. And while these cases are indeed chilling, they are also in the minority. Most sex crimes against children are committed by adults known to the victim. But as more and more anti-sex offender laws pass, the pool of those affected increases. As a result, legislation designed with hardened criminals in mind also gets applied to teens whose activities are significantly different.
Of course, the emergence of new media has created a legal nightmare. Child pornography laws were not written for teens who posted nude pictures of themselves online or texted racy messages to a friend. But this is how they have been applied, and teens involved in these situations have been painted as dangerous criminals. Yet as Peter Cumming, an associate professor at York University in Toronto, explained in a paper he gave last spring on childrens' sexuality, sexting is simply a modern variation on “playing doctor or spin-the-bottle.”
So what of those Pennsylvania teens busted last year? Well, theirs just became the first criminal case involving ''sexting'' to reach a U.S. appeals court.
It remains to be seen whether the 3rd Circuit judges will rule that the pictures, (which, for the record, were of two 12-year-olds in sports bras, and a topless 16-year-old getting out of the shower) are indeed child pornography. Let's hope they agree with Witold J. Walczak, the ACLU of Pennsylvania's legal director, who argued during the trial that, ''Turning [these teens] into sex offenders is an odd way to protect kids...We've been mystified how anybody can look at these photos and say these are second-degree felonies.''
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