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.

Commentary Sexuality

West Virginia Sexting Law Likely to Harm Already-Victimized Girls

Amanda Marcotte

The outcome of the law is likely to be that girls who are already suffering from a public shaming will be charged with delinquency, all for sending a picture to a boy.

While I suspect most teen sexting is relatively harmless, most of us are rightly concerned about incidents in which naked pictures of teenagers get forwarded and distributed without their consent. In most cases, a girl shares a nude photo of herself with a boy (or man, in some cases) whom she trusts will behave appropriately with this vulnerable image, only to have him show it off to others, post it online, or otherwise try to shame her for it. In a couple of sad cases, the humiliated girl has even committed suicide. It’s a problem that needs fixing. Unfortunately, West Virginia’s approach—to outlaw sexting and charge those found “possessing, distributing or producing sexually inappropriate photos, videos or other media” with delinquency—is exactly the wrong way to go about this.

This law may be well-intentioned, but it will almost certainly serve mainly or even entirely to punish victims who are already enduring a public humiliation. After all, the only way that a “sext” will come to the government’s attention is if it’s being disseminated, usually without the person in the photograph’s permission. Private text messages that are kept private will, for obvious reasons, not draw legal attention.

I can confidently predict how the enforcement of this law will turn out most of the time: A girl will send a nude picture to a boy. He will forward it, publish it, and share it generally. Once it becomes known that the picture is out there, the girl, who is already suffering from a public shaming, will be charged with delinquency. The boy who originally forwarded the message may get charged, but in many or most cases, probably not. After all, it’s easier to prove that she was engaged in sexting, because of the image, than to bother to figure out who forwarded it first. They can’t charge everyone who shared the image, right? So she, the victim of this hateful behavior, will be the one punished. It’s tailor made for victim-blaming and abuse.

How do I know that’s how it will go down? Well, common sense should be good enough, but we also have actual real-world evidence. High schools have already experimented with punishing students for sexting, and the punishments often fall more heavily on the girl whose only crime was trusting too much, and not the boys who violated her trust. Jezebel reported in April about a teenage girl who sent a topless photo of herself to her male friends, and sure enough, she was the one who got expelled while the boys weren’t punished.

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The American Civil Liberties Union shared a similar story from 2010 in which the girls in the sexts were charged with child pornography, even though the photos didn’t show nudity:

Only the girls who appeared in the photos were threatened with child porn charges. If the DA did in fact regard these photos as pornographic, why not file distribution charges against the boys? A clue may be found in their argument before the 3rd Circuit. In narrating the case, their attorney explained how, after the girls were photographed, “high school boys did as high school boys will do, and traded the photos among themselves.”

We have no reason to believe this law won’t be handled in a similar fashion, where girls are punished for creating sexts, but boys aren’t for sharing them. You could try to justify this by saying that the fear of legal consequences might make girls a little more cautious about who they trust with nude images of themselves, but that argument falls apart when you examine it at all. After all, the girls already know the risks of being humiliated if the image gets out there. If they didn’t already have misplaced trust in the recipients of the nude images, they wouldn’t be sending them. So adding more risks won’t likely change the calculation there.

The problem here is that adults all too frequently focus on the “sex” part of sexting, when the real issue is not sex, but misogyny and a violation of trust. It’s only natural that girls will be tempted to use digital technology to take nude photographs. Sexual experimentation is a normal part of adolescence, and human beings have used every kind of media technology throughout history to make erotic representations. It’s just what we do. The issue here is not that girls are experimenting with sex, but that so many boys think so little of girls’ humanity that they would subject girls to a massive public shaming just for the hell of it.

To be clear, most boys are not engaging in this shaming behavior. Preliminary research shows that only 11 to 12 percent of boys have shared private images with people who weren’t meant to see them. Still, that number is alarmingly high, suggesting that this kind of disrespect and misogynist belief that a woman deserves to be abused for daring be sexual is really widespread. This is the problem that needs to be dealt with. Boys need to be explicitly taught to respect girls’ privacy, and if they violate trust someone put in them to keep private images private, then they are the ones who need to be punished, not the girls.

After the Steubenville case, where boys filmed and photographed themselves raping a girl, you would think people would understand what the problem is: So many boys feel not only that it’s OK to humiliate and bully girls in this way, but that it makes them a hero in the eyes of their friends. Unfortunately, our massive cultural hang-ups about female sexuality make it hard to see this. Which is why laws like this one in West Virginia will absolutely be used to abuse already-victimized girls, while not doing anything productive to prevent the real problem, people forwarding sexual messages without permission.

Roundups Sexual Health

Sexual Health Roundup: Illinois to Improve Sex Ed, Changing HPV Messages, and West Virginia Bans Teen Sexting

Martha Kempner

This week, the Illinois senate took up a bill requiring that sex education be medically accurate, West Virginia took on teen sexting, and a new study suggested we may need to change our HPV messages if we want more women to get the vaccine.

Sexual Health Roundup is a weekly summary of news and research related to sexual behavior, sexuality education, contraception, STIs, and more.

Illinois Lawmakers Look to Expand Sex Education

The Illinois senate is poised to vote on a bill that would require sexuality education courses to be medically accurate and teach about birth control and sexually transmitted diseases (STDs). This is a bit of switch for the state, which has allowed abstinence-only education for over a decade.

In fact, the state’s current law says that schools must “emphasize abstinence as the expected norm” and that any course that teaches about sex must teach “the hazards of sexual intercourse.” Schools in Illinois, however, do have some choice in how they teach sexuality education. They can provide an abstinence-only course, a comprehensive course, or choose not to have sex education at all. All courses must emphasize abstinence.

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If the bill passes, this would change. Schools would still have the option of not providing any sexuality education at all, but if they choose to do so the education must be medically accurate and cover both birth control and STD-prevention. The law includes an opt-out policy that allows parents who object to the content to take their children out of the class without penalty.

The bill passed the state house last month by a vote of 66-52. It now moves to the senate, where it is being sponsored by Sen. Heather Steans (D-Chicago). Steans explained to the Chicago Tribune, “Kids are doing this. We need to give them proper and better tools to inform them. Our goal is we need to limit teenage pregnancy.”

According to the Tribune, a number of Steans’ senate colleagues agree, and feel that simply telling teens to wait for the right person is not enough. During committee hearings on the bill, Sen. Don Harmon (D-Oak Park), for example, compared the proposal to school-based drug awareness programs.

Cancer Messages Don’t Motivate Young Women to Get the HPV Vaccine

As we know from past reports, there are now two vaccines that can prevent the strains of the human papillomavirus (HPV) that are most likely to cause cervical cancer. The HPV vaccine has been a hard sell in this country, as parents seem reluctant to follow the advice of the Centers for Disease Control and Prevention (CDC) and vaccinate their sons and daughters early. Like many of my public health colleagues, I’ve long believed that the best messages—especially for parents—are ones that look past the sexual nature of HPV transmission and focus on the ultimate goal of preventing cancer. However, a new study suggests that college-age women are more motivated by preventing STDs, while their mothers are neutral.

Researchers enrolled college-aged women who had not yet had the vaccine as well as their mothers in a study designed to see which messages motivated them the most. Half of the students and half of the mothers got a packet of information called “Prevent Cervical Cancer,” while the other half got a packet called “Prevent Genital Warts.” The groups were given the same amount of time to read their packets and then answered a questionnaire that asked how they felt about HPV and the vaccine and how interested they were in seeing a doctor about this issue.

The genital warts message clearly resonated more with the college-age women, as this group was not only more likely to say they were interested in seeing a doctor, but were also more likely to say they’d be comfortable talking to the doctor about the HPV vaccine. The researchers believe that this comfort is key, and that scare messages are probably not the right tactic to take. The lead author told Medical News Today, “Our results suggest it is more important to get women to feel comfortable talking to their doctor about the vaccine. Fear doesn’t work. They need to feel it is not difficult or embarrassing to discuss the vaccine with their doctor. That’s the best way to encourage them to be vaccinated.”

The concern that STD messages would not resonate with mothers because it would force them to confront the possibility that their daughters are sexually active turned out to be unfounded in this study. The mothers reacted similarly to the two messages, which led the researchers to conclude, “[if] we focus on the prevention of genital warts in our messages to daughters, it may not mean we have lost the mothers.”

I do wonder if the results among the mothers in the study have anything to do with the age of their daughters. It is relatively expected that college-age women are sexually active. A repeat of this study with younger girls and their moms would be very interesting, as the vaccine is recommended as part of routine care for 11-year-olds to make sure that they have all three doses before they become sexually active.

West Virginia Bans Sexting Among Teenagers

Teenagers in West Virginia should probably set an alarm on their smart phones for July 12 that tells them, well, to put down their smart phones. That’s the day a new law goes into effect in the state making sexting an act of juvenile delinquency.

Specifically, the law bars juveniles from making, having, or distributing photos, videos, or other media that portray a minor in an inappropriate sexual manner. Minors found with such material would be guilty of juvenile delinquency. The law, however, also directs the state supreme court to develop an education program that would show offenders the consequences of sexting, including the long-term harm it can do to relationships, school success, and future job opportunities. Minors who are caught sexting can choose this course as an alternative to juvenile charges.

While I agree that sexting, especially when it involves naked or otherwise sexual pictures, can have long-term consequences, I wish states would not rush to punish young people for their sexual behavior. Here’s a radical idea for West Virginia: Put education first. Instead of waiting until you catch kids red-handed to teach them something, develop that course and use it to teach all young people how to think critically before they hit the send button.