By Emma Mcarthur
Federal child pornography laws have been in the public eye more recently as a number of celebrities have been charged with child exploitation related offenses. Celebrities like Jared Fogle, Subway spokesperson, Glee star Mark Salling, and Survivor contestant Michael Skupin, have brought to light the often-unnoticed perpetrators in child pornography cases.[1] Child pornography charges encompass a number of separate offenses. The most notable include the production, distribution, possession, or receipt of child pornography. Although federal felony charges for child pornography are available, federal jurisdiction is often only implicated in cases where the offense involves interstate or foreign commerce.[2] Due to the cross-border nature of federal child pornography charges, teenagers have rarely been charged under federal child pornography laws for self-produced images and the likelihood that they will in the future remains slim. However, state child pornography laws are entirely different issues, particularly in sexting cases.[3]
Sexting is defined as “the transmission of nude images or suggestive materials via text messages.”[4] In 2014, 20% of all teenagers admitted to having sent nude or semi-nudge images of themselves to other people.[5] These statistics may be even higher as other studies reveal that most teenagers send and receive explicit photographs.[6] With such high statistics, state responses to what some are considering a sexting epidemic have varied widely across the country. Some states, including North Carolina, Colorado, and Massachusetts, are taking a particularly aggressive approach, providing prosecutors with an enormous amount of discretion in charging teenagers with serious sexual offenses because of the vague nature of the child pornography statutes.[7] These states do not distinguish between child and adult perpetrators, leaving children vulnerable to charges for felonies generally reserved for adults. Other states approach sexting more aggressively based on highly specific laws, including Georgia, Florida, and Nebraska. These states specifically provide for felony charges against minors who engage in sexting.[8]
The most recent criminal sexting case involves three teenagers who were arrested during a ‘sexting’ investigation conducted at a local middle school. In Wisconsin, a teenage boy under the age of 15 took sexually explicit pictures of himself on a female classmate’s phone. The classmate then forwarded the nude picture to other students at the school. The teenager featured in the photograph and two of the female classmates that distributed the picture were arrested for the nude images. The male teenager was originally charged with manufacturing child sexually abusive material. Both female teenagers were charged with distribution. It is still unclear what official charges will be filed, if any, and the extent of potential punishment. However, if the prosecutor decides to file formal felony charges, the teenagers could face sex offender registry, probation, or a deferred sentencing agreement.
In North Carolina, one case made international headlines in 2015 based on the extreme criticism it received after the county arrested two teenagers for violating state felony adult pornography laws. A 16-year-old male, took sexually suggestive photographs of himself and sent them to his girlfriend. His girlfriend also sent images to him. During an investigation conducted at the school, investigators discovered the nude photographs. The teenage male was charged with four sexual exploitation crimes related to the pictures of himself, two counts of second-degree sexual exploitation of a minor, and three counts of third-degree sexual exploitation of a minor.[9] Under North Carolina’s Second Degree Sexual Exploitation of a Minor statute, a person has committed a crime if s/he records or photographs a visual representation of a minor engaged in sexual activity or distributes visual representations of a minor engaged in sexual activity.[10] It is a Class C Felony and carries a period of incarceration as well as sex offender registration. These two teenagers were arrested for sexually exploiting themselves, essentially making them both the victim and the perpetrator.
Based on the vast criticism received, North Carolina offered the teenage male and his girlfriend a plea offer, allowing them to plead guilty to a lesser misdemeanor charge of disseminating harmful material to a minor. At sentencing, each teenager received a year of probation. Conditions of the male teenager’s probation included staying registered in school, taking a class on good decision making, participating in 30 hours of community service, and not possessing a cellphone. He must also submit to warrantless searches. Although the felony charges were dismissed, the male teenager’s name on the Internet is now associated with “child pornography,” causing pause for his future.[11]
While some states have started charging juveniles as perpetrators in child pornography cases, other states have taken a different approach, seeking to avoid the long-lasting consequences associated with sexual crimes, particularly those crimes against children. There are currently 20 states that have sexting statutes that specifically address defendants under the age of 18. Of those 20 states, 16 states require that prosecutors charge teenagers with either a misdemeanor or provide for an informal penalty often under a diversion program.[12] Eleven states provide for only a diversion program, eliminating criminal charges altogether, in an attempt to address the underlying issues rooted in teenage sexting through counseling, awareness programs, and community service.[13]
The clear discrepancies in child pornography laws and charging abilities from state to state calls into question whether a uniformed legal system is needed to address the issue of sexting with teenagers. Laws that were created to protect minors from exploitation are now prosecuting minors, placing them in the same category of perpetrators that intentionally prey on children. In addition to labeling teenagers “sexual predators” under the law when initially charging them, the states that allow these charges are taking advantage of the high stakes at hand in these types of cases. Although it is clear that many of the teenagers charged with felonies for sexting are later offered plea deals to misdemeanors, the states are failing to recognize the high stakes outside of the legal context. The high profile nature of these cases draws significant attention to both the parties involved and also to the extremity of the charges themselves. In states like North Carolina, where there is no specific sexting law, teenagers, like the one recently charged, are charged as adults, allowing the police to release their names to the media. The shame and embarrassment attached to the arrests alone is enough to damage the future of a teenager, potentially impacting their college and potential career choices.[14]
To address this issue, states should adopt a uniform system that allows for a diversion program for teenagers who are caught engaging in sexting similar to the program set up in Illinois. Illinois recently enacted a law that specifically addresses sexting and teenagers under the age of 18.[15] In Illinois, the penalties for a sexting violation treat the teenager as a minor in need of supervision under the Juvenile Court Act. Teenagers do not face criminal charges but rather participate in counseling services and community service programs to address the issue. Other states like Vermont have provided teenagers a temporary “pass” for sexting, making their first offense a juvenile crime.[16] As a result, the teenager is able to participate in a diversion program deemed appropriate by the court. However, after the teenager’s first offense, any additional charges for new incidents can be charged as either a misdemeanor or a felony. Neither of these options results in permanent criminal charges, high profile news reports, or sex offender registration. States across the country need to create a uniformed system to discipline for teenagers that are caught sexting. Otherwise, the victims become the perpetrators in some states while in others the state treats victims as victims, creating an unfair level of punishment against children.
[1] See Christine Hauser, Jared Fogle, Former Subway Pitchman, Gets 15-Year Prison Term, The New York Times, Nov. 19, 2015, https://www.nytimes.com/2015/11/20/business/jared-fogle-former-subway-pitchman-gets-15-year-prison-term.html; Jessica Chasmar, ‘Glee’ Star Arrested for Possession of Child Porn: Police, The Washington Times, Dec. 29, 2015, https://www.washingtontimes.com/news/2015/dec/29/mark-salling-glee-star-arrested-for-possession-of-/; Former ‘Survivor’ Star Arrested for Child Porn, The Detroit News, Feb. 5, 2016, https://www.detroitnews.com/story/news/local/oakland-county/2016/02/05/former-survivor-star-arrested-child-porn/79903074/.
[2] See Department of Justice, Citizens Guide to U.S. Federal Law on Child Pornography, The United States Department of Justice, Criminal Division: Child Exploitation and Obscenity Section, https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography.
[3] See id.
[4] See Sexting, FindLaw, https://criminal.findlaw.com/criminal-charges/sexting.html.
[5] See Teenage Sexting Statistics, Guard Child, https://www.guardchild.com/teenage-sexting-statistics/.
[6] See Randye Hoder, Study Finds Most Teens Sext Before They’re 18, Time, July 3, 2014, https://time.com/2948467/chances-are-your-teen-is-sexting/.
[7] See Suzanne Spencer, Teens in Three Rivers School Sexting Investigation may Face Charges, WSBT, Feb. 1, 2016, https://www.wsbt.com/news/local/its-becoming-more-common-teens-in-sexting-investigation-could-face-charges/37757600; see also Sameer Hinduja & Justin W. Patchin, State Sexting Laws: A Brief Review of State Sexting and Revenge Porn Laws, and Policies, Cyberbullying.org 1 (July 2015), https://cyberbullying.org/state-sexting-laws.pdf.
[8] See State Sexting Laws, supra note 7, at 1.
[9] See Kelly McLaughlin, High School Quarterback and His Girlfriend Both Charged by Cops for Privately Sharing Nude Photos of Themselves, Daily Mail, Sept. 5, 2015, https://www.dailymail.co.uk/news/article-3223533/North-Carolina-hgh-school-quarterback-girlfriend-charged-adults-exchanging-nude-photos.html.
[10] See N.C. Gen. Stat. Ann. § 14-190.17 (West 2015).
[11] See Paul Woolverton, Fayetteville Teen Facing Felony Charges in Sexting Case Agrees to Plea Bargain, The Fayetteville Observer, Sept. 11, 2015, https://www.fayobserver.com/news/local/fayetteville-teen-facing-felony-charges-in-sexting-case-agrees-to/article_f8c8e156-9660-57b4-a2b8-b65a6bd8bbb2.html.
[12] See State Sexting Laws, supra note 7, at 1.
[13] See id.
[14] See Stone Sub, Sexting Case Highlights Quandary Over Child Porn Laws, Chicago Tribune, Sept. 24, 2015, https://www.chicagotribune.com/news/nationworld/ct-sexting-teens-child-porn-laws-20150924-story.html.
[15] 705 Ill. Comp. Stat. 405 / 3-40 (West 2015).
[16] See Vt. Stat. Ann. tit. 13, § 2802b (West 2015).