The truth about sexting laws

Editor’s Note: Danny Cevallos is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

Students at a Colorado high school allegedly exchanged hundreds of naked photos of themselves, which has prompted a felony investigation by police and the forfeiture of a football game, apparently because many players have been implicated in the sexting scandal. It seems that one maxim persists throughout human existence when it comes to adolescent behavior: Adults do the darndest things.

Of course, kids do all kinds of irresponsible, ill-advised things, but they are, well, kids. In that sense, their reckless, unpredictable behavior is predictable. Even the Supreme Court has acknowledged what humankind has always known: that adolescents are more “impetuous,” “reckless,” and “susceptible to negative influences” than adults. Of course, the same Supreme Court recognized that juveniles are developmentally less culpable and more capable of reform than adults too.

Academia and science appear to agree with the Supreme Court:

“Adolescence is a time when maturation of the limbic system outpaces frontal lobe development. Thus, puberty is accompanied by “a proliferation of receptors for dopamine” which may explain the increase in risky behaviors, including unsafe sex, as teens pursue their hormone driven search to experience pleasure and social bonding.”

Does that sound like the behavior of you or anyone you knew from the ages of 13 to 18? Me too.

It’s how adults respond over and over again to teen behavior that may leave one “smh.” (If you don’t know what that acronym means, let me be the first to welcome you to unhip adultland. You’ve probably been here a while and didn’t know it. I’ve been here for years.)

It’s hard to accept, but two things are true of sexting, the law, and all adult judgment of adolescent behavior:

First, whether we admit it or not, we were motivated by the same impulses in our own adolescence. We just didn’t have a cell phone. Second, we old folks are hardwired to be suspicious of kids’ early mastery of evolving technology. Just as your own parents believed your Atari, punk rock, or your Walkman to be the harbinger of doom for Western civilization, adults will always seek to fear, regulate and then suppress how minors experiment with tech. And, just as all adults who have come before us, we will be largely unsuccessful in stopping them.

The latest scandal in Colorado is symptomatic of adults rushing to judgment. The first indicator is the imposition of summary, mass punishment. Any time a high school cancels a game or a season or even a sports program, they almost always do so with zero due process, and before an investigation is complete. Worse, this clunky mode of mass sentencing invariably punishes innocent team members who have not even been implicated in said scandal. Are there plenty of good administrators and teachers? Of course. But since high schools are fiefdoms with little accountability for disciplinary actions, there invariably are some impulsive reactions by administrators to the impulsive behavior of students.

Then there’s the law-enforcement response to sexting. Is this really what we want? Instead of employing nonpunitive family and education solutions to the inevitable proliferation of adolescent sexting, we’re siccing the justice system on our kids. You may have heard that the juvenile courts are designed for treatment and rehabilitation, or that a juvenile adjudication is sealed, secret, and wiped clean, so there’s no permanent harm done to a child defendant. It’s a Pollyanna view of juvenile records. More and more, employer and college applications ask about juvenile adjudications. Some juvenile delinquency records can preclude foster parenting, adoption, or jobs that work with children. This includes industries like education, child care, and other service-oriented work.

Ultimately, we are using prosecution – juvenile or adult – to solve a phenomenon that is driven more by irrepressible developmental susceptibility than criminal intent. It will not stop the problem. It will just give kids records: Juvenile records, adult records, and worst of all, sex offender registry records. Once in the “system” – which is now on the “cloud” and the “Internet” – our kids can look forward to life on what’s been called the “electronic plantation”.

Obviously, child pornography is a horrific crime. Yet as much as school officials have broadly concluded that any sexting is criminal, court decisions remind us that this is not automatically true of all images sent between tweens. Whether images are criminal when willingly sent must still meet the statutory state or federal definition, which focuses on the content of the image, whether actual genitalia is displayed, and prurient intent of the teens involved.

Then there’s the public policy behind child pornography laws. Did legislatures really intend to reach adolescent behavior like this? The Supreme Court has observed that the purpose of outlawing child pornography is to protect the victims and to destroy the market for the exploitative use of children.

Scholars like Marsha Levick and Kristina Moon argue that, when compared to the traditional public policy behind criminalizing child pornography, sexting, in comparison, generally “occurs without the exploitative circumstances that are central to the production of conventional child pornography.” These critics suggest there is a logical inconsistency where the victim is simultaneously a volunteer. Indeed, sexting as a crime is conceptually paradoxical: It is produced and sent by a willing participant (and also usually the subject of the photo). However, that participant is often someone who is legally unable to consent to sexual activity, and whose photograph often fits the legal definition of prohibited images. With that in mind, and given our collective abject horror at child porn, it’s understandable that we would err on the side of caution, and cast a wide net – one that ensnares our own students as defendants.

The bottom line is that child pornography laws target predators. Its goals are noble: to eradicate the activity, the incentive, and the market itself. A first time offender convicted of producing child pornography faces a statutory minimum of 15 years in prison. A first time offender convicted of transporting child pornography faces a statutory minimum of 5 years in prison. But then there are the sex offender registries. Is this the same punitive hammer we want subject our children to for what is, in many cases, experimental behavior?

Teen sexting is a problem of technology and human nature. But what if it’s one we can’t solve? Throughout time, youth have found ways to disobey authority and make bad decisions. In the past teens have rebelled through pot, alcohol, video games, and fast cars, despite the best efforts of parents and authorities. Maybe teen sexting is the “next thing” – the latest form of adolescent risk-seeking behavior. While it too can be investigated and regulated, maybe it cannot be completely prevented.

I’m just worried what the next thing after this will be.

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