You’ve probably heard of sexting by now. The word is a mashup between sex and texting and the act amounts to electronically conveying lewd and suggestive images with a smartphone or other technology.
Just as we now have new vocabulary associated with technologies that have infiltrated our lives, so do we have new crimes. But little legislation directly addresses sexting per se. Instead, prosecutors charge people using existing laws.
Applying Old Laws
Perhaps surprisingly, much sexting is charged as child pornography. That makes sense if an adult is sexting with a child, but it also happens when two teens consent to exchange nude or suggestive images. The problem of teen sexting is growing, and late last year a school in Colorado was faced with a major scandal. It seems that dozens of young people were exchanging unsavory texts and some of the pictures appeared to have been taken on the school campus. The students were using a fake calculator app to mask their activities.
Cañon City Schools Superintendent George Welsh told reporters last November when the story broke that the problem was not unique to his district. “There isn’t a school in the United States probably at this point that hasn’t at some point dealt with the issue of sexting,” Welsh said.
The reason that teen sexting is such tricky business is that child pornography laws were designed to protect children from adults, and not to protect teenagers from each other necessarily. The issue gets very thorny, for example, when two teens consensually exchange lewd images and are both charged as adults for endangering children. Thus we criminalize behavior that is acceptable between adults, using laws meant to protect kids.
When two adults agree to sexual activity or exchange images voluntarily that is not a crime. But if one adult starts sexting another and the behavior is unwanted, there are also ways to charge this behavior criminally under existing laws for harassment and the like.
Criminality arises when there is a victim. If two people agree to a lewd or sexual act — and both have the legal capacity to understand the agreement — then there is no problem. But in the teen sexting cases especially, there is an issue as both parties are charged as perpetrators and named as the victims.
David Ball, a law professor at Santa Clara University in California, told Ars Technica, “It’s a canon of criminal law, you can’t be an accomplice to an act that has you as the victim.” He was referring to a case in which two teens were both charged with criminally endangering a child and were the victims in each others’ criminal cases.
If you or someone you know — whether a teenager or an adult — is charged for a crime associated with sexting, talk to a lawyer. Many criminal defense attorneys consult for free or a minimal fee and will be happy to assess your case in light of the relevant details.