Karen Fratti
April 19, 2018 6:35 am
Image Source RF/Zave Smith/Getty Images

Research shows that basically everyone with access to cellular service has sent an explicit message to someone in their lifetime. And it starts early, given that the average age a kid who gets a cell phone for the first time is 10 and a half years old, according to national data. A study published this month found that sexting is “becoming a normative component of teen sexual behavior and development,” as reported by the New York Times. Still, stories pop up all the time about teen “sexting scandals” or people being prosecuted for sending nudes. So is sexting legal or are we missing something?

Sexting can mean a lot of things to different people. Some people sext using innuendo and emoji only, while others rely on perfectly lighted nudes to turn their partner on from far away. If you’re just talking about all the hot things you want to do to your partner, you’re in the clear, legally speaking. But if you’re sending actual photos, it’s an entirely different story in some circumstances.

When adults sext, it’s usually (hopefully) consensual and therefore legal. Unless the pics are later distributed against someone’s consent, at which point they are subject to revenge porn laws, but let’s hold off on that for now. The trickiest thing is regulating teen sexting, which is, as previously mentioned, prevalent. Sexting among minors, even when totally consensual, is technically legal, but is often prosecuted using child pornography laws. It’s a tricky legal and ethical grey area, and to complicate matters, it’s often the young woman who bears the brunt of the punishment, which can have lasting effects.

Again, there are some states that have specific teen sexting laws, and they usually involve some language about creating and sharing explicit images.

The laws vary in severity. For example, according to Net Nanny, in Florida, “for the first offense, any minor caught sending, possessing or creating nude images of minors can receive a non-criminal violation, subject to a $60 fine or 8 hours of community service in addition to training or instructional classes about the dangers of sexting.”

In Connecticut, “minors caught sexting will be charged with a misdemeanor, as of November 1, 2010. These individuals could face up to one year in prison in addition to a fine of $2,000.” In California, the state is attempting to protect minors for sexting and the law might be less draconian. Net Nanny explains, “California currently charges anyone who creates, distributes or possesses sexually explicit images of a minor under child pornography laws. A bill was recently proposed to reduce the punishment of any first time sexting offenders who are minors, with the punishment being community service and mandatory counseling.”

The laws are supposed to protect minors from people who would exploit them. Obviously, child pornography and sexual abuse is abhorrent and should be prosecuted to the fullest. So, too, should people who sext with minors, much like they should be for engaging in any sexual activity with them. Because of these laws, though, teens who sext consensually with each other can get in a lot of trouble, even though what they’re doing is actually just normal, developmentally appropriate sexual behavior and isn’t at all like making or sharing child pornography. What we should be concerned about is revenge porn.

Take the case of Jane Doe in Minnesota, who in January was charged with felony distribution of child pornography. Jane Doe sent an explicit Snapchat of herself to a boy in her high school who then made a copy, without her permission, and shared it with his classmates. Jane Doe, if convicted or even takes a guilty plea for a lesser charge, faces up to ten years on the sex offender registry. Just for sending what the American Civil Liberties Union called an “explicit selfie.” Child pornography laws are supposed to protect minors from being exploited or victimized, but she wasn’t victimized or exploited when she took the picture. When teens are charged with child porn laws for their sexts, they’re essentially being called the perpetrator and the victim of their crime. That just doesn’t make any sense.

But when Jane Doe’s picture was copied without her consent, she was a victim of revenge porn.

There are 38 states that have revenge porn laws. Minnesota, where Jane Doe is being prosecuted, has one. According to the Cyber Civil Rights Initiative, someone can be charged for the “nonconsensual dissemination of private sexual images.” It’s a misdemeanor unless it involves “financial loss, intent to profit” or it was done with the “intent to harass,” or was posted to an actual porn site. Minnesota’s revenge porn laws are pretty tight. If you’re convicted of it, even as a misdemeanor, it “qualifies as a prior qualified domestic violence-related offense” and enhances later penalties for future domestic violence, stalking, and assault charges.

There are a lot of arguments about revenge porn laws as well as using child pornography laws to prosecute teen sexting. Some maintain that blanket revenge porn laws violate free speech. For sure, we can make those laws better. There are others that think no one under a certain age should be sexting at all. But much like you can’t prevent teens from making out in their parents’ basements, you can’t stop kids from sexting, especially since they’re already doing it. So when teens are caught sexting, they usually go right to child pornography laws, which often means prosecuting the girl who sent a nude to her boyfriend.

Most of the stories in which teens are charged with child pornography distribution involve revenge porn. Research shows that young women and LGBTQ identifying people are more likely to be threatened with revenge porn than young men, which means that when their nude selfies go viral, they’re at risk of being prosecuted for distributing child porn. Because rape culture is an epidemic in our legal system, that means blaming the woman for taking a nude selfie instead of targeting the boy for sending it to the group chat. Kind of like how we punish teen girls for wearing tank tops in class because the boys won’t stop being distracted by their bodies or ask girls why they got drunk at homecoming when they report sexual assault.

If you’re an adult, please, sext away with other consenting adults. But we need to make sure we’re educating teens about sexting, consent, and the dangers of cyber bullying and revenge porn. Because what can start as a fun game with your first ever “real” boyfriend can possibly result in long-lasting legal ramifications for the selfie taker. It’s not fair, but it’s how it is right now. And of course, we have to look for more ways to hold boys accountable for their actions, too.

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