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West Virginia Sexting Law Likely to Harm Already-Victimized Girls

Written by Amanda Marcotte forRH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at theoriginal post.

While I suspect most teen sexting is relatively harmless, most of us are rightly concerned about incidents in which naked pictures of teenagers get forwarded and distributed without their consent. In most cases, a girl shares a nude photo of herself with a boy (or man, in some cases) whom she trusts will behave appropriately with this vulnerable image, only to have him show it off to others, post it online, or otherwise try to shame her for it. In a couple of sad cases, the humiliated girl has even committed suicide. It's a problem that needs fixing. Unfortunately, West Virginia's approach -- to outlaw sexting and charge those found "possessing, distributing or producing sexually inappropriate photos, videos or other media" with delinquency -- is exactly the wrong way to go about this.

This law may be well-intentioned, but it will almost certainly serve mainly or even entirely to punish victims who are already enduring a public humiliation. After all, the only way that a "sext" will come to the government's attention is if it's being disseminated, usually without the person in the photograph's permission. Private text messages that are kept private will, for obvious reasons, not draw legal attention.

I can confidently predict how the enforcement of this law will turn out most of the time: A girl will send a nude picture to a boy. He will forward it, publish it, and share it generally. Once it becomes known that the picture is out there, the girl, who is already suffering from a public shaming, will be charged with delinquency. The boy who originally forwarded the message may get charged, but in many or most cases, probably not. After all, it's easier to prove that she was engaged in sexting, because of the image, than to bother to figure out who forwarded it first. They can't charge everyone who shared the image, right? So she, the victim of this hateful behavior, will be the one punished. It's tailor made for victim-blaming and abuse.

How do I know that's how it will go down? Well, common sense should be good enough, but we also have actual real-world evidence. High schools have already experimented with punishing students for sexting, and the punishments often fall more heavily on the girl whose only crime was trusting too much, and not the boys who violated her trust. Jezebel reported in April about a teenage girl who sent a topless photo of herself to her male friends, and sure enough, she was the one who got expelled while the boys weren't punished.

The American Civil Liberties Union shared a similar story from 2010 in which the girls in the sexts were charged with child pornography, even though the photos didn't show nudity:

Only the girls who appeared in the photos were threatened with child porn charges. If the DA did in fact regard these photos as pornographic, why not file distribution charges against the boys? A clue may be found in their argument before the 3rd Circuit. In narrating the case, their attorney explained how, after the girls were photographed, "high school boys did as high school boys will do, and traded the photos among themselves."


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