A Call to Reform the Criminalization of Teen Sexting in Virginia
In Virginia, if a minor is found in possession of nude photos of either themselves or another minor, they can be charged with the possession of child pornography. As currently written, these laws subject innocent teenagers to disastrous and absurd consequences. For the reasons explained below, the unreasonable prosecution of children under child pornography statutes falls squarely on the shoulders of the Virginia legislature as a result of their failure to draft legislation which distinguishes between child pornography and consensual teen sexting.
The first part of this article will discuss the origin and definition of child pornography laws in Virginia. The second section of this article will provide a brief overview of “sexting” and why minors sext with one another. The third part of this article will explain why urgent reform is supported by compelling psychosocial, legal, public policy, and moral considerations. Finally, I briefly delve in to a number of sensible considerations which must be taken into account when drafting possible legislation.
The Origin of Child Pornography Laws
Even though we are guaranteed freedom of speech under the First Amendment, not all forms of speech are created equal, nor are they all afforded the same levels of protection. In the seminal case of New York v. Ferber, the Supreme Court found that First Amendment protections do not extend to depictions of children engaged in sexual activity – even if these depictions are not obscene. See New York v. Ferber, 458 U.S. 747, 764-65 (1982) Thus, state legislatures were able to pass laws which criminalize the possession and distribution of child pornography, so long as the laws describe in reasonable detail the acts which are prohibited.
Subsequent to the Ferber decision, a number of states began to draft and pass laws which criminalized the possession, distribution, and creation of child pornography. Under Virginia law, child pornography is defined as any “sexually explicit visual material which utilizes or has as a subject an identifiable minor.” Virginia Code § 18.2-362. Sexually explicit visual material means a picture, drawing, motion picture, digital image, including when 3 or more of those digital images are stored on a computer, which depicts bestiality, a lewd exhibition of nudity, sexual excitement, and sexual conduct.
Yet, as the law currently stands in the Commonwealth, teen sexting falls within the ambit of our child pornography laws. Consequently, the law unnecessarily exposes teenagers to criminal charges, prison time, and mandatory registration as a sex offender. Given these patently unfair and absurd results for what is a normal, victimless, and voluntary exchange between two teenagers, it is incumbent upon the Virginia legislature to immediately begin drafting laws which distinguish between child pornography and teen sexting.
The need for urgency is illuminated by the fact that almost every teenager today has a cellphone – thereby providing them the ability to potentially create and view nude images. Thus, a line must now be drawn which distinguishes between a minor teen’s ability to voluntarily express themselves, and illegal, exploitive child predation. There is no question that not every teen sext is harmful, and this is precisely why reform is necessary: The law in Virginia fails to account for the very real and practical differences between normative teenage sexual exploration and actual child pornography.
What is Sexting?
Sexting is the act of taking a sexually explicit picture and then transmitting it via a text message from one cell phone to another. In almost every high school and college across the country, teen sexting has become a normative and expected component of flirtatious behavior and romantic relationships. Unfortunately, this evolution of amorous communications has also led to bullying and breaches of privacy.
Why Do Children Sext With Each Other?
Sexting is often initiated when one minor, as a symbol of intimacy, chooses to send a naked or sexually provocative photo of themselves to another minor with whom they are having a romantic relationship. On other occasions, a teen may send a sexually explicit photograph as a means of flirtation even though they are not in a committed relationship. The teen initiating the exchange is known as the “primary sexter.”
During these exchanges, one party may keep the photograph private and neither show nor disseminate it to anyone else. Other times, the recipient, also known as the “secondary sexter,” may send the photo to friends and classmates without ill intent, but also without considering the repercussions. Alternatively, the secondary sexter may disseminate the photo as a way of embarrassing and humiliating the primary sexter. On other occasions, the secondary sexter may not have initially intended to disseminate the photograph, but when a relationship with the primary sexter ends on acrimonious terms, the secondary sexter may send the photo to others as a form of retaliation.
The Reasons Why Urgent and Meaningful Legislative Reform is Necessary
Per a 2014 study conducted by Drexel University, 54% of teenagers have sent a sexually explicit text message while 28% have sent a photographic sext message. While some may view the normalization of this behavior as distasteful, imprudent, or inappropriate, the Supreme Court, in the case of Thompson v. Oklahoma, explained why not all imprudent or inappropriate teenage behavior is criminal in nature:
“Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.”
Thompson v. Oklahoma, 487 U.S. 815, 834-35 (1988)
Against the backdrop of the Supreme Court’s opinion, this article seeks to present and explain why meaningful reform is necessary.
Virginia’s Current Laws Punish Normal Psychosocial Development
Although it is not something parents generally want to discuss, there is no escaping the fact that adolescence is a time during which a child will engage in sexual experimentation and discovery of their sexual identity. As children make these discoveries, they naturally tend to discuss and share them with other children their own age. In the past, children would share love letters, sexually charged notes, or maybe even a sexually provocative polaroid picture. Today, sexting is how children share these discoveries, and its prevalence is simply an outgrowth of advancements in technology and a child’s need to share their sexual exploration or discoveries with others.
To be sure, the prevalence of teen sexting should come as no surprise. Indeed, adolescence is not only a time of discovery, but it also a period during which children undergo rapid physical and cognitive changes. The abruptness of these changes can leave children feeling awkward and self-conscious. Consequently, they seek to share and explore their sexuality through a medium which allows them to avoid the embarrassment of in-person interaction.
Yet, in a cruel disregard for healthy and normal adolescent behavior and experimentation, the Virginia legislature has criminalized sexting between teenagers by charging it under child pornography statutes. Paradoxically, Virginia views teen sexting as a crime, but views teenage sexual intercourse as nothing more than a Class 4 misdemeanor which is rarely – if ever – prosecuted. This lack of logic is particularly disturbing when considering that sexual intercourse is infinitely riskier than sharing a nude photo. Indeed, when it comes to sexual intercourse, a child could become pregnant or infected with an incurable sexually transmitted disease. But as currently written, Virginia law favors teenage sexual intercourse instead of the safer, more age-appropriate sexting exchange.
Teen sexting is the newest medium by which young men and women can explore and expand their sexual identity and, like it or not, it is here to stay. It is therefore both out-of-touch and less-than-logical to believe that children will stop sexting merely because it is illegal. Children’s desire to expand and explore their sexual identities as teenagers is inherent. It is a product of normal and healthy psychosocial development. It is therefore in the best interests of both children, and the Commonwealth, to enact laws which put an end to criminalizing this behavior as “child pornography.”
Charging Teen Sexting as Child Pornography Perverts the Intentions of the Law
The United States Supreme Court has held that child pornography laws are designed to “protect the victims of child pornography” and “to destroy the market for the exploitive use of children.” Osborne v. Ohio, 495 U.S. 103, 109 (1990) (emphasis added) The most salient reason supporting child pornography laws is the protection of “the victims of child pornography.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002) (emphasis added)
When it comes to teen sexting, however, the critical element of exploitation is almost entirely absent. Without question, most minors who practice sexting willfully and voluntarily take, and share, explicit or nude photographs of themselves. When the exchange is voluntary, any harm which might befall the child would be collateral, ancillary, and entirely dependent upon subsequent criminal behavior by the recipient or secondary texter. As a point of emphasis, such subsequent criminal behavior via the unauthorized distribution or dissemination of a nude photograph should not fall under child pornography laws, but rather, under Virginia Code § 18.2-152.7:1 which makes it a crime to use an electronic device to coerce, intimidate, or harass another person.
When conduct is deemed to be criminal in nature, it is generally conduct which society views as wrong or dangerous. The problem with consensual teen sexting is that it does not fall into this definition. When a law vilifies all minors who send or receive a sext message, it not only vilifies normal behavior, but it prosecutes children under laws which were designed to protect a child from exploitation. Under these circumstances, law enforcement should not meddle in private, healthy, and consensual adolescent expression and experimentation.
In sum, teen sexting occurs because a child voluntarily takes and sends a nude photograph of themselves. The voluntariness of the child’s actions eviscerate the element of “exploitation.” Thus, to charge teen sexting as child pornography is not only absurd, but it blatantly disregards the plain purpose and intention of child pornography laws.
Charging Children Under Child Pornography Statutes Attacks the Very Class of People the Laws Were Designed to Protect
As discussed above, the purpose and intent of child pornography laws is to protect children. But if such is the case, then how would prosecuting a child for child pornography in any way advance the stated goal of the child pornography statute? The simple answer is that it wouldn’t. To support this point, one only need turn to an opinion from the Utah Supreme Court. In this particular case, the court held that charging two minors with sexual abuse of a child for sexually touching each other would lead to an “absurd result” because doing so would mean that there was “no discernible victim that the law seeks to protect.” State ex rel. Z.C., 165 P.3d 1206, 1211–12 (Utah 2007). When extending this logic to Virginia’s current statutes, it becomes evident that when the Commonwealth charges a minor under the child pornography statutes for sexting, it is essentially acknowledging that child pornography laws lack a discernible victim for which the law was designed to protect.
For this additional reason, the Virginia legislature must draft sensible and meaningful legislation which avoids incidentally undermining the very purpose of child pornography statutes – to protect the exploitation of children.
When it Comes to Teen Sexting, the Punishment Simply Does Not Fit the Crime
Simply put, prosecuting teen sexting cases as child pornography is an unjust misapplication of child pornography statutes. In fact, children can be tried as adults. The consequences of these convictions can destroy a child’s ability to get into college, find a job, or enlist in the military. Additionally, the child will be required to register as a sex offender. Because sex offenders must register and provide notification, these children can have their lives destroyed before their life even has a chance to get started. The accused may be unable to find a place to live or readjust to normal life, all while remaining subject to the criticism and ridicule of peers, neighbors, and the community at-large. These consequences are heavy handed as it is, but that is without even considering that the child will face a prison sentence of between one to 30 years.
At the end of the day, the simple reality is that punishing a minor sexter with incarceration is a punishment which does not fit the crime. Sexting is not dangerous or morally deplorable enough to warrant the child being removed from their family. Moreover, the incarceration of minors is harmful to not just the minor, but to their families, and the community at large – as many times, incarceration prevents the child from becoming a contributing member of society. Moreover, children who have been incarcerated are at a higher risk of being abused and of committing suicide. It therefore is neither prudent nor fair to burden a child with the social stigma of juvenile detention for an offense like sexting.
Any new laws which are designed to specifically address teen sexting must distinguish teen sexting from pedophilia and child pornography. Having said that, I would like to reiterate that the Virginia legislature’s inaction on this issue would appear to be a product of laziness. At the same time, I believe it would be unfair to overlook the difficulties associated with drafting teen sexting legislation. To be sure, these new laws would have to account for a multitude of factors including the differences in explicitness captured in an image; the age of the person in the picture; the age of the party receiving the picture; whether the picture had been taken consensually or surreptitiously; whether the primary sexter consented to the secondary sexter’s dissemination of the photograph; whether the secondary sexter disseminated the picture with malicious or retaliatory intent, and many other considerations.
Given all of the foregoing variables, legislative reform must be carefully and thoughtfully drafted to avoid further absurd results. Likewise, these considerations – and many others – would also address the fact that not all sexting is created equal. Other states have drafted legislation designed to address teen sexting. It is time for Virginia to catch up.
Sexting is a very common practice in American society, and to prosecute children who engage in this practice under child pornography laws is absolute madness. Sexting is a part of our culture and merely because it is an uncomfortable topic, and parents would prefer that their children not engage in its practice, does not give the Commonwealth and its prosecutors license to charge children with one of the most severe and stigmatizing criminal charges under our system of law. Children will continue to engage in consensual, normal, and healthy sexual exploration and it is time that the Commonwealth of Virginia accept this reality and draft reform which no longer criminalizes normal adolescent behavior.
Contact a Fairfax Juvenile Defense Lawyer Today
If your child has been charged under child pornography laws for teen sexting, contact the Law Offices of Randall Sousa today to receive a free consultation with an aggressive, affordable, and highly skilled Fairfax juvenile defense attorney. If your child also happens to be facing school discipline as a result of the same issue, you can obtain more information at our Virginia student defense lawyer page. Likewise, additional information can be viewed on our Fairfax sex crimes lawyer page. We encourage you to click on all of the foregoing links to obtain more information about the ways in which we can help you. Call us today. 571-354-6164
 Strohmaier, H., Murphy, M. & DeMatteo, D. Sex Res Soc Policy (2014) 11: 245. doi:10.1007/s13178-014-0162-9
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By: Randall Sousa