December 5, 2018
Sexting. You won’t find the word in any 20th century dictionary. A combination of “sex” and “texting,” sexting is the exchange of explicit pictures via cell phone. Sometimes the photographs are shared voluntarily. Often, an element of coercion is present. In either case, once the photographs are sent, they can subsequently be used to embarrass, intimidate, or bully.
Rate of Sexting Among Youth
Particularly among adolescents and even pre-teenagers, sexting is a relatively recent phenomenon. In a 2017 study of a private high school, researchers found that 15.8 percent of males and 13.6 percent of females sent sexts; 40.5 percent of males and 30.6 percent of females received them.1 A 2016 study in the Journal of the American Academy of Psychiatry and the Law found that the rate of “minors who have sent sexual images range from 4 to 25 percent, depending on the age of the youths surveyed, the content of the messages and other factors.”
From a legal vantage point, sexting may violate child pornography laws, possession and distribution laws, obscenity statutes, and other offenses. The resulting severe penalties may include prison terms, fines, require the offender to formally register indefinitely as a sex offender, and cause the offender future high employment hurdles. Sexting may also trigger issues regarding the rights of parents to raise their children as they see fit, and may implicate other First Amendment free speech and free expression concerns.
Depending on many factors, sexting can simultaneously be an issue for parents, schools, law enforcement, and child protective services (CPS). For instance, exactly what was the nature of the material or text message that was sent or received? How well did the sender and receiver know each other? How many sexting messages were sent? Over what period of time were the messages sent? Did one party indicate they wanted the sexting to cease? Is there clear evidence or even an inference of sexual o ending?
Certainly there is no sense in prosecuting every consensual sharing of a photograph between two children of a similar age. That said, at what point does a child’s normal curiosity and desire for sexual experimentation lead to societal intervention? Should every report of sexting to school authorities necessarily involve law enforcement and CPS? If not, are there clear protocols that offer guidance? In many states there may be legal defenses for minors charged with possessing or transmitting sexual depictions of other minors. For instance, if the visual image was shown only to the defendant or if the minor depicted in the image was no more than two years older or younger than the defendant and they were in a dating relationship at the time of the offense, there may be an absolute defense.
Is adolescent sexting a prank or is it pornography? Is it youthful indiscretion or criminal predatory behavior? Clear CPS policies can ensure that gray area situations are addressed consistently, which is particularly critical when dealing with complicated civil rights issues.
New York attorney James Marsh advises: “The real harm to children from sexting is not the creation of the images, but the distribution of the images to peers and to others unknown, especially on the Internet. Sexting should be analyzed more like bullying than sex.
A careful consideration of the power dynamics is essential. Is one teen blackmailing the other? Are the images being used to harass, intimidate, or shame the other person? Is the victim at risk of self-harm or psychological damage? The primary role for CPS is supporting victims. It’s critically important that victims are not shamed in the process. Bad judgment is the hallmark of adolescence and sexting is just one more example of seemingly inexplicable teen decision making.
There are reputable professionals who see sexting as a safe form of sexual activity without the risk of disease, pregnancy, or alcohol and drug-induced behavior. On the negative side, victims often experience shaming, guilt, bullying, self-harm, and even suicide. By focusing on the harms, and not the activity itself, CPS and other child welfare professionals can best support victims while placing the real focus on perpetrators and their enablers.”
CPS employees, in conjunction with law enforcement and school officials, are the key officials making tough legal and ethical calls. And, as we know very well, citizen, legislative, and legal oversight is, and should be, omnipresent. Particularly from a legal perspective, making the right call on a consistent basis is a matter of understanding, training, and attention to detail.
Our primary concern is to protect children, not prosecute them. One hasty decision to click the “send” button by a child—or a CPS employee—can ruin many lives.