It’s Time to Stop Prosecuting Kids for Sexting

North Carolina, I’m looking at you.

Ten months after the state made national headlines for charging a 16-year-old high school quarterback and his 15-year-old girlfriend with two felonies each for exchanging nude cell phone photos, state officials have leveled four felony counts against a 16-year-old boy for disseminating obscenity (i.e., photos of his penis).

At first blush, these charges are less immediately outrageous than the ones brought against Cormega Copening and Brianna Denson (both of whom ultimately accepted misdemeanor plea agreements). In the current case, Devin Russell Searcy (who is being charged as an “adult” despite being a minor himself) is alleged to have sent the four dick shots to a young woman with whom he was chatting online; she turned out to be 12 years old.

The report in the local Jacksonville, North Carolina newspaper doesn’t have a lot of detail about the circumstances that led Searcy to photograph himself and send the shots to the young woman. What is clear is that this incident is already having a serious effect on Searcy’s life. In addition to the publication of his mug shot, he is being held on $8,000 bail and is facing between 1 and 4 years in prison. If convicted, he will also have to register as a sex offender.

There’s a lot we don’t know about this case. For instance: a) What service were the two minors using to chat? 2) Who approached whom? 3) What was the nature of the conversation? 4) Did the older boy simply foist the photos on the younger girl, or did the girl ask for them? (Anyone who immediately assumes that no 12-year-old, boy or girl, would make such a request should spend some time in my research files).

There are a couple of points that need to made crystal clear. First, regardless of how sexually mature or even promiscuously a child may act, it is never acceptable for an adult to take advantage of that by soliciting nude photos, initiating sexual contact, or assaulting the child. Access to pornography may be shrinking “childhood,” but that troubling phenomenon does not grant license to predatory adults to accelerate the process further.

Second, minors unfortunately are just as capable of committing electronic sexual assault as adults (cell phone technology and software are the great levelers). If the facts show that Searcy was attempting to groom the younger child or that this was the beginning of an assault, then he should be prosecuted to the full extent of the law (although not necessarily under obscenity laws).

Some time ago, when Vermont was one of the first states to revise its child pornography laws to create a “Romeo-and-Juliet” exception for underage sexters, Chittenden County State’s Attorney TJ Donovan effectively argued that he and his colleagues still needed some discretion to prosecute minors who used force or coercion to solicit or distribute nude photos. Donovan was correct: There’s no question that assaultive behavior should be penalized, regardless of the age of the perpetrator. However, absent force or coercion, the creation and consensual sharing of nude photos by minors should not be treated as a felony.

It is particularly inappropriate to prosecute and punish children using outdated laws that were originally drafted to protect minors from predatory adults. Instead, state laws should be updated to reflect our growing awareness of the fact that when minors take nude photos of themselves (or of their romantic partners), very few if any think for a second that they are creating child pornography (which is, incidentally, a description and not necessarily a legal conclusion; not every nude photo of an individual under the age of 18 is ipso facto criminally obscene).

Research is showing that teens (and even pre-teens) who use their mobile devices to take nude and semi-nude photos of themselves have numerous reasons for doing so:

  • Curiousity;
  • Entertainment or boredom;
  • Habit (teens photograph everything);
  • Peer pressure;
  • Pride, ego, vanity;
  • Flirtation and hormones; and
  • Developmentally-appropriate sex play with a romantic partner.

As other commentators have pointed out, it would be ridiculous to penalize minors from looking at their naked body in the mirror or viewing another naked minor (with consent). Most states have even adopted “Romeo-and-Juliet” exceptions to their statutory rape laws to shield minors (within certain age gaps) from criminal charges when they engage in consensual sexual activity. It is ludicrous to have a stricter standard for the digital images that teens create with about as much thought as taking their next breath.

While I strongly believe that we should not bring felony prosecutions against minors for consensual, age-appropriate behavior, I also strongly believe that children of every age should be educated about the potential consequences of taking and sharing digital photographs (nude or not). It is obviously not a consequence-free activity, even if we do stop prosecuting them for obscenity.

Children need to learn, for instance, that the only digital image that can be completely protected from misuse is the one that is not taken in the first place. There are ethical and moral values that should be taught about when to take photographs, where and how to share them, who to tag (or not tag), and removing them from social media if consent is withdrawn. Older children in particular need repeat lessons about the potential consequences of oversharing photographs, as well as the risk that photographs of a sexual nature may wind up in the hands of the very people at which child pornography laws were originally aimed. And of course, every child should be taught that it is wrong to act without consent: no taking photos of someone without their knowledge, no sharing of photos without permission, no use of force or coercion to obtain photos.

Not every teen will hear and heed those lessons but it is our obligation to provide them nonetheless. It is far better to light a candle against the darkness than to snuff out a child’s future through the mindless application of ill-fitting laws.

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