University of Colorado Denver professor Amy Adele Hasinoff’s Sexting Panic: Rethinking Criminalization, Privacy, and Consent, out last month from the University of Illinois Press, is a reasoned, if academic, look at the ways teens use social media and the Internet to flirt, seduce, and tease, often transmitting sexual images that are intended for private viewing. While occasionally glib, the book is nonetheless a thoughtful entry point for those interested in how new media technologies can be used and misused.
Hasinoff did not, herself, interview teens for the text. This is a disadvantage, since first-person narratives would have made the book more compelling. Instead, she distills numerous reports, studies, and news accounts about the phenomenon and the panic that ensues whenever adults get word that young people are swapping naked photos. Her starting argument addresses the fact that “teen sexting is often framed as a form of child pornography or as part of a cyberbullying epidemic … yet for many people, the practice is a form of interpersonal intimacy.” The truth, Hasinoff writes, is that people of all ages and persuasions sext, willingly and playfully—a reality that critics of the practice tend to ignore in favor of hyperbolically dire commentary.
That said, problems routinely arise when a photo recipient decides that she or he wants to share the images with others. When pictures that are meant to be private become public without the consent of the sender, Hasinoff notes, the person who spreads the images is violating implicit assumptions about privacy, trust, and the relationship itself. As Hasinoff sees it, just as medical records cannot be shared without the explicit consent of the patient, violators should face legal consequences for any infraction—no matter with whom they share the photos, or how innocent they believe their intent to be. Sexting is an issue of consent and privacy, Hasinoff writes: simultaneously a sex act and a speech act.
The unauthorized sharing of pictures can present tremendous problems for teens, she continues, because it can lead to law enforcement involvement; this is especially problematic since the law defines any and all explicit images of a person under the age of 18 as child pornography. In terms of practical implications, Hasinoff writes that “a number of teenagers the United States involved in sexting have been charged with producing, possessing, and distributing” illegal imagery—in other words, pictures of their friends in various states of undress. This leaves consensual sexters extremely vulnerable: Although the numbers are small, it’s worth noting that in 2009, 134 people younger than 18 were arrested for, Hasinoff writes, “consensually creating or sharing images in the context of romantic relationships or for sexual attention-seeking.” Yes, you read this correctly: 134 young people were arrested for texting images of themselves to someone else. Surprisingly, it did not apparently matter whether the recipient was their age or an adult.
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Although Hasinoff offers no hard facts about the who, what, when, or where of most of these arrests—which weakens her argument somewhat—she does offer a realistic assessment of the probable enforcement patterns. “Since texting is a relatively common behavior and decades of research have demonstrated systemic racism and homophobia in the justice system, both new sexting misdemeanors and existing child pornography laws are likely being disproportionately applied to queer youth, lower-income youth, and youth of color.”
Hasinoff illustrates the irrationality of current law-enforcement behavior with several anecdotes. One takes readers into Tunkhannock, Pennsylvania—recent census reports describe it as a middle-income borough of about 1,800 people—where in 2009, parents of nearly 20 kids attending the local high school received a letter from the Wyoming County district attorney’s office informing them that a random search of student cell phones found their children in possession of “child pornography.” At issue were photos of three then-13-year-old girls in white bras, standing outside a shower with towels covering their torsos. The photos of the girls were found on the phones of every child whose parents were contacted.
The DA offered the parents a deal: The charges would be dismissed if their kids spent six months on probation, submitted to random drug tests, and completed an unspecified “education program.” Most accepted the offer but the three bra-wearers did not. They contacted the American Civil Liberties Union of Pennsylvania to contest the charges.
According to Hasinoff, the ACLU bungled the case by arguing that “forcing the girls to attend [the] education program would violate their parents’ right to control the upbringing of their children and the girl’s right to freedom from compelled speech.” Although Hasinoff concedes that the ACLU was sympathetic to the teens, the lawyers’ exclusive focus “on desexualization and innocence—that the girls took the photos for ‘fun’ and were topless only because of the summer heat—precludes a larger discussion about teenagers’ right to freedom of expression.”
Perhaps unwittingly, she writes, the ACLU reinforced the notion of teen girls as irresponsible, hormonally driven, and flighty, too young to be aware of their sexual prowess. Although the ACLU triumphed by avoiding criminal charges for the arrested teens, Hasinoff believes it was a hollow victory since it did not reinforce the idea that girls had a right to send photos in a deliberately flirtatious manner to whomever they pleased. What’s more, she is annoyed that schools, parents, and lawmakers typically “punish girls who sext consensually while ignoring boys who violate their privacy.” And of course, policymakers typically place far less emphasis on boys who send photos of themselves to friends or potential hook-ups.
Nonetheless, while Hasinoff is clearly right to acknowledge the blatant gender disparity, she is a bit off the mark in other ways. By not differentiating 13-year-olds from 17- or 18-year-olds, she sidesteps the enormous developmental differences between the two cohorts in terms of maturity levels and knowledge of legal and social systems. Still, she is correct that “the idea that innocent girls need to be protected from themselves—from their innately irrational brains and the overwhelming biological forces of their sexuality” is pure bunk. This notion of girls who send photos as suffering from low self-esteem and a need for attention—the mantra of many child advocates—needs to be turned asunder, since many girls know exactly why they are sexting potential hook-ups.
Additionally, the idea of “girls gone wild,” reinforced by the disproportionate punishment of female sexters, ignores the fact that many teenagers and young women responsibly manage their sexuality.
This is actually the crux of the matter, since far too many adults continue to believe that it’s normal for boys and young men—but not girls or young women—to seek sexual expression. Needless to say, victims of sexual assault have long been blamed for provoking attacks, and Hasinoff points a finger at a similar tendency when it comes to sexting. That is, “out of control” girls are blamed for photos going viral, whether by peers or by adult men who somehow gain access to them. The implication of this punishment framework, she writes, is that posting images online is always dangerous and should always be avoided. A better approach: Teaching young people that they should never share photos non-consensually, and creating a system of justice to reinforce that.
Sadly, she writes, this message is rarely promulgated since the bulk of youth programs “focus on changing girls’ attitudes and behaviors instead of trying to modify male behavior to reduce the incidence of sexual violence and harassment.”
In addition, Hasinoff notes that the mistaken assumption that all digital images are public is pervasive, which is why she argues for a legal crackdown on those who share images without the explicit consent of the person depicted. Unfortunately, she makes it sound simple, but it is not. Indeed, the issue of consent in this context is incredibly complicated and layered, at least for me. For example, what happens when a person receives a photo and then forwards it without first asking permission, and the second recipient then forwards it to his/her friends, with the cycle repeating? How might we enforce consent laws? Would every person who forwarded the image be considered complicit and at fault? What would an appropriate punishment look like? If such consequences were to be put in place, these and other questions need to be considered by policymakers, youth leaders, parents, and child advocates.
In the absence of much legal precedent, Hasinoff’s alarm about the way sexism is used to punish and police girls who sext, rather than cracking down on those—mostly, but not exclusively, men and boys—who violate privacy by sharing images without authorization, provides a cogent reminder about the magnitude of concerns governing digital etiquette. Many of Hasinoff’s insights are spot-on in this respect: “The idea that criminalizing sexting protects teens, especially girls, from their own ill-considered decisions,” lies at the core of contemporary responses to sexting, she writes. To date, the response has rested largely with girls: Telling them not to sext, as if this alone will protect them from being harassed, menaced, raped, stalked, or intimidated. Hasinoff further explains that “men and boys are rarely asked to do any work to resist the ill effects of sexualization; this task falls almost entirely to girls and women.”
Although I am certainly sympathetic to Hasinoff’s argument that telling kids not to sext is meaningless—they’ll clearly do it anyway—I’m simultaneously sympathetic to parents who want to caution their children about the behavior’s potential to wreak havoc. As Hasinoff herself says, there are presently few consequences for recipients who spread sexts nonconsensually.
To her credit, Hasinoff does offer a list of sexting tips and recommendations that zero in on present-day realities about rape, rape culture, and the prevalence of sexual assault. It shouldn’t be necessary to do these things, she writes, but it is nonetheless wise to crop or blur one’s face or other identifying marks out of suggestive photos; delete old photos often and ask partner(s) to do the same; and consider using an app that deletes pictures automatically after they’ve been viewed. She further urges state legislatures to decriminalize consensual sexting, repeal age-specific sexting misdemeanors, and add age-span exemptions so that if there are fewer than four years between partners exchanging photos no one can be prosecuted for distribution of child pornography. Likewise, she tells adults to learn the difference between consensual texting and privacy violations and suggests the development of a “harm-reduction approach to deal with privacy violations and harassment.” Finally, she prods us to demand that media companies build privacy protections into the design of their devices so that it becomes more difficult to forward photos from person to person.
Common sense? Absolutely.
Although Sexting Panic diminishes sexting’s downside by paying too little attention to the psychological and physical abuse that can result when images meant to be private go viral—whether post-break-up, as an act of revenge, or simply by accident—it is a solid counter to moralists who can’t fathom anything good coming from the practice. This makes it an important contribution to an important social issue. Indeed, as Hasinoff argues, sexting is not likely to go away, so we’d best figure out how to maximize the joy it can bring while minimizing the harm it can cause.