Say you're a middle school principal who has just confiscated a cell phone from a 14-year-old boy, only to discover it contains a nude photo of his 13-year-old girlfriend. Do you: a) call the boy's parents in despair, b) call the girl's parents in despair, or c) call the police? More and more, the answer is d) all of the above. Which could result in criminal charges for both of your students and their eventual designation as sex offenders.
Sexting is the clever new name for the act of sending, receiving, or forwarding naked photos via your cell phone. I wasn't fully persuaded that America was facing a sexting epidemic, as opposed to a journalists-writing-about-sexting epidemic, until I saw a new survey done by the National Campaign To Prevent Teen and Unplanned Pregnancy. The survey has one teen in five reporting he or she has sent or posted naked photos of himself or herself. Whether all this reflects a new child porn epidemic or just a new iteration of the old shortsighted teen narcissism epidemic remains unclear.
Last month, three girls (ages 14 or 15) in Greensburg, Pa., were charged with disseminating child pornography for sexting their boyfriends. The boys who received the images were charged with possession. A teenager in Indiana faces felony obscenity charges for sending a picture of his genitals to female classmates. A 15-year-old girl in Ohio and a 14-year-old girl in Michigan were charged with felonies for sending along nude images of themselves to classmates. Some of these teens have pleaded guilty to lesser charges; others have not. If convicted, these young people may have to register as sex offenders, in some cases for a decade or two. Similar charges have been filed in cases in Alabama, Connecticut, Florida, New Jersey, New York, Texas, Utah, and Wisconsin.
One quick clue that the criminal justice system is probably not the best venue for addressing the sexting crisis? A survey of the charges brought in the cases reflects that—depending on the jurisdiction—prosecutors have charged the senders of smutty photos, the recipients of smutty photos, those who save the smutty photos, and the hapless forwarders of smutty photos with the same crime: child pornography. Who is the victim here and who is the perpetrator? Everybody and nobody.
There may be an argument for police intervention in cases that involve a genuine threat or cyber-bullying, such as a recent Massachusetts incident in which the picture of a naked 14-year-old girl was allegedly sent to more than 100 cell phones, or a New York case involving a group of boys who turned a nude photo of a 15-year-old girl into crude animations and PowerPoint presentations. But are such cases really the same as the cases in which tipsy teen girls send their boyfriends naughty Valentine's Day pictures?
The argument for hammering every such case seems to be that allowing nude images of yourself to go public may have serious consequences, so let's nip it in the bud by charging kids with felonies, which will assuredly have serious consequences. In the Pennsylvania case, for instance, a police captain explained that the charges were brought because "it's very dangerous. Once it's on a cell phone, that cell phone can be put on the Internet where everyone in the world can get access to that juvenile picture." The argument that we must prosecute kids as the producers and purveyors of kiddie porn because they are too dumb to understand that their seemingly innocent acts can hurt them goes beyond paternalism. Child pornography laws intended to protect children should not be used to prosecute and then label children as sex offenders.
Consider the way in which school districts have reacted to the uptick in sexting. Have they cracked down on the epidemic? Confiscated cell phones? Launched widespread Lolita dragnets? No, many now simply prohibit students from bringing cell phones to school. This doesn't stop students from sexting. It just stops them from being caught. How bad can sexting really be if schools are enacting what amounts to a don't-ask-don't-tell policy?
Parents can forget that their kids may be as tech-savvy as Bill Gates but as gullible as Bambi. At some level, teens understand that once their image reaches someone else's cell phone, what happened in Vegas is unlikely to stay there. The National Campaign To Prevent Teen and Unplanned Pregnancy survey suggests 25 percent of teen girls and 33 percent of teen boys report seeing naked images originally sent to someone else. Yet even in the age of the Internet, young people fail to appreciate that their naked pictures want to roam free.
The same survey showed that teens can be staggeringly naive in another way: Twenty percent have posted a naked photo of themselves despite the fact that 71 percent of those asked understand that doing so can have serious negative consequences. Understanding the consequences of risky behavior but engaging in it anyhow? Smells like teen spirit to me.
The real problem with criminalizing teen sexting as a form of child pornography is that the great majority of these kids are not predators and have no intention of producing or purveying kiddie porn. They think they're being brash and sexy, in the manner of brash, sexy Americans everywhere: by being undressed. And while some of the reaction to the sexting epidemic reflects legitimate concerns about children as sex objects, some highlights pernicious legal stereotypes and fallacies. A recent New York Times article about online harassment, for instance, quotes the Family Violence Prevention Fund, a nonprofit domestic violence awareness group, saying that the sending of nude pictures, even if done voluntarily, constitutes "digital dating violence." But is one in five teens truly participating in an act of violence?
Many other experts insist the sexting trend hurts teen girls more than boys, fretting that they feel "pressured" to take and send naked photos. Yet the girls in the Pennsylvania case were charged with "manufacturing, disseminating or possessing child pornography" while the boys were merely charged with possession. This disparity seems increasingly common. If we are worried about the poor girls pressured into exposing themselves, why are we treating them more harshly than the boys?
In a thoughtful essay in the American Prospect Online, Judith Levine, author of Harmful to Minors: The Perils of Protecting Children From Sex examines the dangers lurking online for children and concludes that the harms of old-fashioned online bullying—the sort of teasing and ostracism that led Megan Meier to kill herself after being tormented on MySpace—far outweigh the dangers of online sexual material. Judging from the sexting prosecutions in Pennsylvania and Ohio last year, it's clear the criminal justice system is too blunt an instrument to resolve a problem that reflects more about the volatile combination of teens and technology than some national cyber-crime spree. Parents need to remind their teens that a dumb moment can last a lifetime in cyberspace. Judges and prosecutors need to understand that a lifetime of cyber-humiliation shouldn't be grounds for a very real and possibly lifelong criminal record.
A version of this article also appears in this week's issue of Newsweek.