Analysis Law and Policy

Punish First, Educate Later: South Carolina Lawmakers’ Approach to Teen Sexting is Backwards at Best

Martha Kempner

South Carolina lawmakers are set to look at laws that make sexting between minors a crime and they are not alone; 21 states took up sexting laws in 2011.  But in their rush to address this issue, too many states are punishing first and asking questions later. 

Legislators in South Carolina are once again considering bills to make sexting among teens a crime.  The bills (there are versions in the House and Senate) would officially make it a criminal offense for minors ages 12 to 17 to send nude or semi-nude pictures of themselves or someone else.  If charged with sexting, a minor could be punished with a $100 fine and a written citation and would also be required to go through “an educational program, which teaches them about the consequences.” 

Lawmakers insist that they are not trying to punish teens: “Our intent is not to criminalize these kids,” says Senator Mike Fair, of Greenville, one of the original co-sponsors of the Senate bill.  “We want to educate them.”  Fair says that his legislation was prompted by incidents of teens across the country who committed suicide after “sexted” pictures were made public: “The shame was too much for that (sic) to take, and we don’t want it to happen here,” says Fair.

But punishing young people after-the-fact in no way ensures that South Carolina youth will be spared the possible shame of sexting.  For one thing, even law enforcement officials admit that it’s difficult to track sexting or punish offenders. The Greenville County Sherriff’s Office acknowledges: “Pretty much all the time, we’re relying on parents to come forward with a complaint.”

Setting up a system in which teens send a sext first, their parent or a friend’s parent turn them in, and then they get punished by being forced to attend an educational session seems backwards at best.  Dr. Elizabeth Schroeder, executive director of Answer, a national sexuality education organization that serves young people and the adults who teach them agrees: 

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“We are a culture that seeks to punish before we educate. I wholeheartedly support the idea of mandating educational programs for young people, but the punitive aspect, whether through serving time in juvenile detention or by levying a fine, doesn’t teach young people why sexting is problematic.”

The truth is that states have to address sexting in some way because, as Sonjia Ziaja pointed out in her piece last spring, sexting falls into a gray area within existing child pornography laws: 

In most states, when a teen sends a nude or “provocative” image of him/herself to another teen, it is not legally distinct from producing, distributing, or possessing child pornography. Clearly child pornography laws are meant to protect children from exploitation. The penalties for distributing sexually explicit images of minors include lengthy prison sentences and a lifetime of being a registered sex offender. These penalties, however, make little sense if the victim and the perpetrator are the same person.

Unfortunately, in their rush to fix this legal dilemma (21 states introduced legislation on sexting in 2011), too many lawmakers are willing to punish offenders first and educate them later.  While a number of states have worked to decriminalize sexting and instead make it a misdemeanor offense, many of them are still set to punish offenders with such consequences as “court supervision, community service, educational classes, counseling, and even a short period of time in juvenile detention.”

Schroeder points out that setting punishments for sexting has another negative effect as well: 

“It teaches them that it’s unsafe to talk with an adult about sexting because they risk being charged with a crime.  It is ridiculously short-sighted.”  

Rather than making sure offenders are punished and cutting off conversations with adults, legislators would better serve teens in their states by making sure everyone is educated, preferably as part of a larger comprehensive sexuality education program. Such programs help teens think critically about their sexual behavior and expression—be it decisions about whether to use contraception during sex or send a topless picture to a boyfriend.

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