Commentary Politics

If Lawmakers Get Their Way, Teens’ Sexting Could Land Them Behind Bars for 15 Years

Martha Kempner

A bill that passed the U.S. House of Representatives earlier this month could harshly penalize adolescents for their high-tech flirting and sexual experimentation.

The U.S. House of Representatives passed a bill earlier this month that expands the definition of child pornography and the penalties to anyone who takes or distributes sexually suggestive images of a minor.

This is a huge over-reach because those people punished under such a measure could include other minors. After all, we live in an era when many young people walk around with smartphones and voluntarily take or send naked selfies.

The Protecting Against Child Exploitation Act of 2017 (or HR 1761) was passed by the House and would have to get the Senate’s approval to be enacted. It’s time to push back now.

The bill makes no exemption for teen sexting, and the act could impose existing mandatory minimum sentences of 15 years on teenagers who are guilty of nothing more than high-tech flirting.

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A good portion of teens have either sent or received a “sext.” For many, it’s sexual experimentation, not exploitation. Obviously, we want to protect our teenagers from the social and emotional embarrassment that might befall them if that pictures goes viral, but severe punishment is not the answer.

Unfortunately, the passage of this law by an overwhelming majority of the House’s Democrats and Republicans shows, yet again, how unwilling we are to accept teen sexual expression as a normal and healthy part of growing up.

Casting a Wider Net

To be fair, the House of Representatives didn’t set out to write a law that criminalized teen sexting.

Instead, Rep. Mike Johnson (R-LA) wanted to strengthen child pornography laws by closing what he saw as a loophole in the current legal code, which focuses on the individual who “employs, uses, persuades, induces, entices, or coerces” a minor into producing or transmitting sexual images. This is a critical phrase that limits who can be prosecuted under this law to those who intended to exploit children.

When introducing the bill, Johnson pointed to a 2015 appeals court case in which prosecutors couldn’t prove intent to produce a sexual image. The bill revises the current language so its provisions would apply to anyone who knowingly produces sexual images of minors, causes such images to be produced, transmits such images, or causes such images to be transmitted.

This casts a much wider net which could easily catch teen sexters. Send a picture of yourself to your girlfriend, take a picture of her, or even ask your girlfriend for a picture (the law applies to attempts or conspiracy to produce or send pictures as well), and you could be in violation of this new federal law and face more than a decade behind bars.

Rep. Sheila Jackson Lee (D-TX) was one of the few vocal opponents of the bill. She warned that “a teenager sexting another teenager could be swept up under the statutory power of this new measure.”

She continued: “HR 1761 ignores the life-altering impact it would have on our juveniles who engage in otherwise stupid and immature behaviors and, in most cases, consensually explicit sexual conduct if we begin to criminalize such conduct.”

Virginia Democrat Rep. Bobby Scott added: “This law is particularly appalling because it would apply to people who I think we should all agree should not be subject to these long mandatory minimum sentences. I am talking about teenagers. Teenage sexting is widespread. Under this law, teenagers who engage in consensual conduct and send photos of a sexual nature to their friends or even to each other may be prosecuted and the judge must sentence them to at least 15 years in prison.”

Jackson Lee offered an amendment that would have ensured that teens were not prosecuted as sex offenders. But it failed, and the bill passed the House by a vote of 368 to 51.

Common, Not Criminal

While it may be hard to imagine for those of us who grew up dropping off rolls of film for developing, the selfie generation lives their lives in pictures. In some of those pictures, they are not wearing a heck of a lot of clothing (if any). The data on how many teens have ever sent or received a sexually explicit picture on their cellphone varies widely but goes as high as 40 percent, with more teens reporting receiving such pictures than sending them.

Some evidence suggests that teens who have had sex are more likely to have also sexted. But the authors of a recent review of sexting research point out that this doesn’t prove sexting leads to the real thing. More likely, they say, sexting is something that sexually active teens have added to their sexual repertoire, like kissing or heavy petting.

“Exploring and expressing one’s sexuality is completely normal for young people, so it shouldn’t come as a surprise that they may use their cellphones as a medium to do this,” Chitra Panjabi, president of the Sexuality Information and Education Council of the United States, told Rewire in an email.

J. Dennis Fortenberry, professor of adolescent medicine at Indiana University, told Rewire: “Sexting is certainly worth investments in education and adult supervision, but it is difficult to support its inclusion among sex offenses.”

Our job as adults, therefore, is not to punish kids but to help them learn how to make responsible decisions around sexting.

Safer Sexting

It is tempting—especially in a political environment in which one mistake could land a kid in jail for a long time—to scream “Don’t do it!” or lock up their phones. But we have a duty to do better than that and explain the nuances of sexting to our teenagers.

“Through the provision of comprehensive sexuality education,” Panjabi told Rewire, “we can equip young people with the information they need to understand sexting by including instruction on healthy communication, consent from both the sender and receiver of digital communications, safety, and laws and policy around their behavior.”

In my household, we joke that “it always ends up on the internet.” My 11-year-old knows that anything she sends by email or text or anything she posts to social media is no longer in her control and could be shared with the whole school or beyond. We’ve told her to use this as a framework for what she’s comfortable sharing: If you wouldn’t want to do it, show it, or say it while standing on a table in the cafeteria, don’t send it. We’ve also told her to make sure no one other than us has her phone passwords so they can’t send any messages or images.

But Nicole Cushman, executive director of Answer, an organization that trains sexuality educators and works with young people to develop sex education resources, points out this type of advice “is akin to victim-blaming for rape or sexual assault because it puts the onus on the senders to make sure their pictures are not disseminated or misused.”

These rules are okay as safety precautions but shouldn’t be the focus of our national discussion. Instead we need to have a conversation with all kids about the importance of respecting each other, respecting privacy, and not sharing anything without permission.

Cushman has some simple tips for teens to start this conversation:

  • Never pressure anyone into sending a sext.
  • Before sending a sext, make sure you know the recipient actually wants to receive it—that is, that the person consents to sexting with you.
  • If you receive a sext, do not share the picture or text with friends or classmates. It was most likely meant for your eyes only.
  • If you receive an unwanted sext that makes you feel uncomfortable, ask the person not to send any more sexts and consider talking with a trusted adult—especially if the person continues to text you.

Of course, given how high the stakes could be if the House bill becomes law, I might also give my daughter some pragmatic advice that I heard in a workshop for high school students: If you do send naked pictures, don’t include your face and make sure there is nothing in the picture (including the background) that can identify you.

It Doesn’t Have to Be This Way: Alternative Laws

It’s possible that teens will be prosecuted, but it’s also possible the federal law won’t be used against teen sexters. Most cases involving a picture sent to or from a teenager are investigated and prosecuted at the local level under state laws. And while sexting has befuddled state lawmakers as well, many states are trying to create laws that catch up to our technology and behavior.

At least 20 states had passed sexting laws as of June 2015, with some softening their laws as they apply to teenagers. Rhode Island sends teens charged with sexting to family court. In West Virginia, sexting is a delinquent offense, and young people can be sent to a diversion program in lieu of having charges filed against them. New York allows for the charges to be dismissed if the teen completes an educational program.

Before Georgia’s statute was changed in 2013, sexting teens could be found guilty of felony sexual exploitation of children, which carried a prison sentence of between five and 20 years. Now, sexting is considered a misdemeanor as long as the intent in creating the image was not to harass, intimidate, or embarrass the minor involved. Sexting is also considered a misdemeanor in Arkansas, where it may be punishable by eight hours of community service or up to a $2,500 fine and a year in confinement.

These changes show that it is possible to pass sensible laws that protect children from child pornography’s horrors without simultaneously sending them to jail for creating that pornography. It’s maddening that more House members couldn’t see past the politics of this vote—no one wants to be seen as soft on kiddie porn—and realize the law was potentially dangerous to teens.

We can only hope that their Senate colleagues take more time and come up with a way to ensure that we do not ruin the lives of teenagers for sending an innocent (or not-so innocent) picture to a boyfriend or girlfriend.

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