When should sexting be illegal?

The new world of online cruelty.
March 1 2010 4:34 PM

When Should Sexting Be Illegal?

Predators must be punished, but what about good kids who make a bad decision?

A girl with a cell phone.
When should sexting be illegal?

A teenager in Wisconsin named Anthony Stancl set up a fake Facebook profile, pretending to be a girl. Seventeen or 18 at the time, Stancl used the profile to lure 30 of the boys he went to high school with to send him nude pictures or videos of themselves. Then Stancl threatened to post the material on the Internet unless they performed sex acts with him. Seven of them say they did—and that Stancl took pictures of them with his cell-phone camera.

Last week, Stancl was sentenced to 15 years in prison after pleading guilty to repeated sexual assault of a child. This is the kind of lurid sexting story that gets the prosecutorial blood flowing. But if Stancl is at the scary end of the teen sexting spectrum, at the other end are a 12-year-old boy and 13-year-old girl in Valparaiso, Ind., who reportedly exchanged nude photos of themselves. The kids were in school when they were caught in this new form of "You show me yours, I'll show you mine." When a teacher confronted the girl, she started to cry. What's the best way to handle an incident like this? Should the police and prosecutors be involved, or should schools and parents handle the fallout? How can states draft laws that protect against Anthony Stancl without sweeping in more innocent behavior, like that of the students in Valparaiso?

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These questions are popping up around the country. And while there's no consensus yet about the right legislative response, the wrong one is starting to become clear. Increasingly, district attorneys agree with children's advocacy groups that hard-charging laws and prosecutions can do real damage. They can land teens on sex offender lists for decades. And they can backfire, harming kids instead of protecting them. For example, a sexting crackdown could give a guy who talked his girlfriend into texting him a nude photo a means of threatening her—he says he'll go to the police with the photo she sent unless she has sex with him. The harder question is whether law enforcement has any role at all to play when sexting doesn't lead to a worse crime like the one committed by the predatory Anthony Stancl.

Consider another case, in which prosecutors went after an 18-year-old for sexting by charging him with the dissemination of child pornography. Phillip Alpert e-mailed a smutty picture of his ex-girlfriend, which she'd sent him when they were together, to more than 70 people. She was 16. He is now a registered sex offender, required to stay on that list in Florida until he is 43. That means reporting not just changes of address but also e-mail addresses and instant-messaging names.

Is this harsh but fair—or way too heavy-handed? The states that have weighed in so far are split. In a bill passed last year, Vermont shielded teens from criminal prosecution for sexting. Illinois, by contrast, created a specific misdemeanor offense for putting a nude picture on the Internet without consent and did not exempt teens. Utah and Ohio took a middle road, passing bills in 2009 that create separate juvenile misdemeanor offenses for teens who send sexts. This means they won't be prosecuted as adults.

But it could also mean that they're more likely to be caught up in the juvenile justice system. The 12-year-old and 13-year-old in Indiana who sent pictures to each other haven't been criminally charged, despite a misleading headline in the local paper that naturally found its way into the blogosphere via the Huffington Post. Still, the kids were sent to juvenile probation, according to prosecutor Brian Gensel. This means a preliminary inquiry in which juvenile probation authorities make an appointment to meet with the kids and their families. The law-enforcement part of the affair could end there, or the kids could be deemed delinquent and sent for counseling or punished.

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