“Sexting” has been in the headlines recently due to the revelation that U.S. Congressman Anthony Weiner exchanged sexually explicit messages and photographs with several women. As you undoubtedly know, Rep. Weiner intended to send a sexually explicit photograph as a private message to one of the women on his Twitter account. Instead, he accidentally sent the photograph to his entire list of followers. Initially, Weiner claimed his Twitter account had been hacked. Eventually, Weiner admitted that he was responsible for the photograph and, later, resigned.
Rep. Weiner’s story is not isolated. In the past few years, the media has frequently reported about sexting incidents, including those involving Brett Favre, Vanessa Hudgsens, Rhianna and Former Miss California Carrie Prejean.
These news stories can provide an opportunity for parents to talk to their kids about a range of topics, including digital citizenship, online reputation and privacy. In addition, this discussion should outline the possible consequences for minors who save, text, forward or e-mail a nude or semi-nude photograph of themselves or their peers.
What is “sexting”?
The term sexting is not legally defined. Instead, it is a loose term generally used to describe the exchange of sexually explicit messages and photographs (1) between adults; (2) between minors; and (3) between adults and minors.
Lumping these three categories together under the term “sexting” is a great disservice to kids because it fosters an assumption that all three categories are treated equally. When an exchange is between two consenting adults, the disclosure of the messages and photographs can have personal and reputational consequences, such as with Rep. Weiner.
However, when the exchange is between minors and/or between adults and minors, the consequences are not only personal and reputational, but potentially criminal. For purposes of this post, we will focus on minors who exchange sexually explicit photographs.
Legal consequences for youth
A minor who creates, sends or possesses an image of a minor engaged in “sexually explicit conduct” (including an image of him or herself) can be charged with the production, distribution and/or possession of child pornography. Not all nude or semi-nude images of minors will qualify as child pornography. In fact, what constitutes an image depicting “sexually explicit conduct” varies.
Federal law defines it as an image showing (i) sexual intercourse . . .; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person” 18 U.S.C. § 2256(2)(A). Many state laws have a broader definition and images that don’t fit into one of the categories above might still qualify as child pornography under state law.
Significantly, under federal law and most state laws, it doesn’t matter whether the minor depicted in the photograph was complicit in creating the photograph. For example, even if the image was willingly created by a 15-year-old for her 16-year-old boyfriend, with no intent to distribute beyond those two individuals, a charge of possession, distribution and/or production of child pornography is possible.
When speaking to school administrators, parents and teachers about minors texting nude or semi-nude pictures of themselves or their peers, I find the term “sexting” insufficient. It does not adequately convey the true risks involved. Instead, I use the term “self-produced child pornography,” which was first advanced by Professor Mary Leary in 2007 and the term “youth-produced sexual images” recently used by Crimes Against Children’s Research Center. (See Mary Graw Leary, Self-Produced Child Pornography: The Appropriate Societal Response to Juvenile Self-Sexual Exploitation, 15 VA. J. SOC. POL’Y & L. 1 (2007).
These terms provide better notice to minors that their activities may not be viewed as harmless youthful indiscretions, but instead, can have serious consequences.
EdNews Parent published this post with the permission of iKeepSafe.org.
Author Nancy Gifford is an attorney in the Center for Medicare Advocacy’s Connecticut office, and served as an Assistant U.S. Attorney for the District of Connecticut from 1998 until 2003. During her tenure, Gifford prosecuted a wide variety of federal criminal cases, including cases about health care fraud, tax evasion and crimes against children. Gifford served as a U.S. District Court law clerk for the Hon. Janet Bond Arterton, the Hon. Alvin W. Thompson and the Hon. Christopher F. Droney. Gifford graduated cum laude from the University of New Hampshire and received her law degree cum laude from Boston University. The opinions shared in this blog are strictly Gifford’s – they do not reflect those opinions of her employers.