The dubious prosecution of two teenagers in North Carolina for sharing explicit photos with each other in the context of a romantic relationship continues to attract attention from media outlets around the world, most of whom (or at least the article commenters) take advantage of the story to deride the U.S. for its lingering prurience and broad moralistic streak.
Today’s entry in the NC sexting cavalcade was a call from Will Pavia (@willpavia), a New York-based journalist for the The Times, or as we would be more likely to call it here in New York, The Times of London. We had an entertaining chat about the case, and The Times ran its update of the story earlier this evening. The article is firmly lodged behind a paywall, but here’s my contribution to the story:
The teenagers were both deemed perpetrators and victims of their own crime thanks to child pornography laws enacted in the 1980s.
Frederick Lane, an attorney from Vermont and author of Cybertraps for Educators, said that the new laws were part of a tough-on-crime agenda embraced across America. Passed long before the era of widespread mobile phone use among teenagers, he said that “it was not until the late 2000s that people began to realise that kids were creating images that constituted child porn, just by snapping themselves in the mirror”.
In North Carolina, defendants over the age of 16 can be prosecuted as adults, but child abuse statutes regard victims as minors until the age of 18.
In the case of the teenage couple, “they are considered minors for the purposes of sexual abuse, but they are being charged as adults for abusing minors who are themselves”, said Mr Lane. He called the situation Kafkaesque and said there was a streak of moralism in such prosecutions.
Some states have enacted so-called Romeo and Juliet laws to avoid such cases, said Mr Lane, but other, more socially conservative states, have not. “No state legislator wants to come out and say this is completely OK,” he said. “At the same time we want the consequences not to drastically exceed the crime.”
According to recent reports, football star Cormega Copening agreed to accept a deal in which he agreed to plead guilty to two misdemeanor counts of disseminating harmful materials to minors. His girlfriend accepted a similar plea agreement earlier this summer.
As a condition of the plea agreement, Copening will serve a year on probation.
During that year, her order says, Copening must stay in school, take a class on making good decisions, complete 30 hours of community service, not use or possess alcohol or illegal drugs, not possess a cellphone and must submit to warrantless searches.
If Copening complies with the punishment, District Attorney Billy West’s office in September 2016 will dismiss the misdemeanor. This will prevent a conviction from going on his record.
Then Copening can ask the government to expunge his public record so that it won’t say he was ever charged in the first place.
As the father of four boys and a long-time computer forensics expert, I certainly don’t think we should encourage children to take nude photos of themselves, let alone distribute them to others, regardless of how much in love they may be. The creation and distribution of nude photos of underage individuals raises far too many issues: simple embarrassment, cyberbullying, possible loss of jobs or scholarships, criminal prosecution, contribution to the worldwide trafficking in child pornography, even suicide.
At the same time, however, it is ridiculous to threaten hormonally-challenged and technologically-equipped teens with multiple years in prison and decades of registration as a sex offender for taking and sharing a handful of nude photos with a boyfriend or girlfriend. As I said in my earlier post, this was an epic failure of prosecutorial discretion. It is also a failure of the North Carolina legislature to join the 20 or so other states that have adopted humane exceptions for first-time offenders that provide for diversion to juvenile court.
While it is embarrassing to have the United States ridiculed for yet another example of an excessively-moralistic prosecution, I hope that the attention this case has received will spur North Carolina and other laggard legislatures to modify their laws to reflect the realities of current teen technology use.