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The Rush to Criminalize Teen Sexting

By defining sexting as a criminal activity, state legislatures are trying to stop a form of sexual expression without first trying to understand it.

The New York Times recently reported that several states are considering bills that tackle juvenile sexting (the transmission of nude or “provocative” pictures to another person, usually by cell phone). Lawmakers are trying to address sexting largely because of a serious loophole in federal and state child pornography laws. In most states, when a teen sends a nude or “provocative” image of him/herself to another teen, it is not legally distinct from producing, distributing, or possessing child pornography. Clearly child pornography laws are meant to protect children from exploitation. The penalties for distributing sexually explicit images of minors include lengthy prison sentences and a lifetime of being a registered sex offender. These penalties, however, make little sense if the victim and the perpetrator are the same person.

All of the state bills consider lighter penalties than currently exist for juvenile sexting. Many include provisions that redirect teens who are caught sexting to education programs, in order to avoid criminal prosecution. The bills use a variety of approaches to address sexting among teens and tweens. But one thing remains consistent in all of them. Each bill retains the possibility of criminal prosecution for sexting.

It is important to differentiate teen sexting from child pornography. But by specifically defining sexting as a criminal activity, state legislatures are rushing to stop a form of sexual expression without first trying to understand it. Why aren’t we having a broader conversation about what the most appropriate response is to teen sexting?

Examining the Urgency
Legislators claim that sexting is a widespread phenomenon among youth, that it endangers teens, and that prosecution of youth for child pornography is too harsh. While these reasons may indicate a need for swift action, it’s important to examine the each of them first.

Is Teen Sexting an Out-of-control Trend?
Data are inconsistent on exactly how prevalent sexting is among teens and tweens, and varies depending on the definition of sexting, and the age range sampled. A survey published by the Pew Center in late 2009 suggests that about 15 percent of teens receive sext-messages or nude images of people they know, while only about 4 percent send these messages. The Pew Center defined sexting as sending sexually explicit images, and sampled minors age 12 to 17. Another, often cited, survey was published by the National Campaign to Prevent Teen and Unplanned Pregnancy and in 2008. That survey used different criteria and concluded that about 20 percent of teens have sent a sext message. However, it used a broader definition of sexting that included sexually suggestive written messages as well as risqué images. It also used information from an older age range (13 to 19) than the Pew Center used. The results are also questionable because they included only teens who voluntarily responded to an online survey, thereby ensuring a skewed sample. Because it was an online survey, it is likely that the survey overrepresented tech-savvy teens and teens interested in sexting. Indeed, even the press release for the survey states that “Respondents do not constitute a probability sample.”

The surveys are nonetheless in agreement on certain findings. A small minority of teens have sent a sext message. More teens receive messages than send them. And, older teens are more likely to send sexually suggestive messages (i.e., as they mature sexually, they are more likely to engage in sexting). The data do not suggest, however, that there is a looming sexting crisis sufficient to necessitate immediate action without further investigation of the matter.

Are the Consequences of Sexting So Dire as to Demand Immediate Action?
Even if it is only a small number of teens who engage in sexting, perhaps the quick and nearly unanimous response of lawmakers can be explained by the severity of the consequences of sexting. There is certainly a dark side to teen sexting. Two particularly well-publicized examples are the tragic suicide of Jessica Logan, an eighteen-year-old Ohio woman, and the prosecution and subsequent conviction of Philip Albert, a Florida teen, for distributing child pornography.

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