When Should Sexting Be Illegal?

Predators must be punished, but what about good kids who make a bad decision?

When should sexting be illegal?

A teenager in Wisconsin named Anthony Stancl set up a fake Facebook profile, pretending to be a girl. Seventeen or 18 at the time, Stancl used the profile to lure 30 of the boys he went to high school with to send him nude pictures or videos of themselves. Then Stancl threatened to post the material on the Internet unless they performed sex acts with him. Seven of them say they did—and that Stancl took pictures of them with his cell-phone camera.

Last week, Stancl was sentenced to 15 years in prison after pleading guilty to repeated sexual assault of a child. This is the kind of lurid sexting story that gets the prosecutorial blood flowing. But if Stancl is at the scary end of the teen sexting spectrum, at the other end are a 12-year-old boy and 13-year-old girl in Valparaiso, Ind., who reportedly exchanged nude photos of themselves. The kids were in school when they were caught in this new form of “You show me yours, I’ll show you mine.” When a teacher confronted the girl, she started to cry. What’s the best way to handle an incident like this? Should the police and prosecutors be involved, or should schools and parents handle the fallout? How can states draft laws that protect against Anthony Stancl without sweeping in more innocent behavior, like that of the students in Valparaiso?

These questions are popping up around the country. And while there’s no consensus yet about the right legislative response, the wrong one is starting to become clear. Increasingly, district attorneys agree with children’s advocacy groups that hard-charging laws and prosecutions can do real damage. They can land teens on sex offender lists for decades. And they can backfire, harming kids instead of protecting them. For example, a sexting crackdown could give a guy who talked his girlfriend into texting him a nude photo a means of threatening her—he says he’ll go to the police with the photo she sent unless she has sex with him. The harder question is whether law enforcement has any role at all to play when sexting doesn’t lead to a worse crime like the one committed by the predatory Anthony Stancl.

Consider another case, in which prosecutors went after an 18-year-old for sexting by charging him with the dissemination of child pornography. Phillip Alpert e-mailed a smutty picture of his ex-girlfriend, which she’d sent him when they were together, to more than 70 people. She was 16. He is now a registered sex offender, required to stay on that list in Florida until he is 43. That means reporting not just changes of address but also e-mail addresses and instant-messaging names.

Is this harsh but fair—or way too heavy-handed? The states that have weighed in so far are split. In a bill passed last year, Vermont shielded teens from criminal prosecution for sexting. Illinois, by contrast, created a specific misdemeanor offense for putting a nude picture on the Internet without consent and did not exempt teens. Utah and Ohio took a middle road, passing bills in 2009 that create separate juvenile misdemeanor offenses for teens who send sexts. This means they won’t be prosecuted as adults.

But it could also mean that they’re more likely to be caught up in the juvenile justice system. The 12-year-old and 13-year-old in Indiana who sent pictures to each other haven’t been criminally charged, despite a misleading headline in the local paper that naturally found its way into the blogosphere via the Huffington Post. Still, the kids were sent to juvenile probation, according to prosecutor Brian Gensel. This means a preliminary inquiry in which juvenile probation authorities make an appointment to meet with the kids and their families. The law-enforcement part of the affair could end there, or the kids could be deemed delinquent and sent for counseling or punished.

Is juvenile court the best place to handle this kind of relatively innocent behavior? Or is discipline for kids in a situation like this better left to their parents and, perhaps, their schools? The ACLU and the Juvenile Law Center argue against bringing these cases in juvenile court in a brief for a Pennsylvania sexting case that’s before the U.S. Court of Appeals for the Third Circuit. A juvenile record “may hinder a juvenile’s future plans to seek higher education, obtain employment, or enlist in the military,” the groups argue. They oppose a Pennsylvania bill that would treat teen sexting as a misdemeanor rather than a felony on the grounds that it will do more harm than good.

This is where the child advocates and the National District Attorneys Association part company, to a degree. “If you have two consenting teens who make a mistake in sending a compromising photo to another person, that’s something you don’t want to prosecute,” the NDAA’s Justin Fitzsimmons says. But in terms of the underlying statute: “We’re in favor of having state prosecutors have the discretion to charge it as a juvenile or not charge it at all.” It’s a subtle but important difference: Give prosecutors the discretion to charge sexting as a juvenile offense and trust them to use it wisely—or don’t give them this new tool for fear it will be misused and a lot of more or less good kids will end up with a record.

The argument against sending all those teen sexters to juvenile court is that at the moment what they’re doing is a weird form of “everyone’s doing it.” Polls show that upward of 15 percent or 20 percent of teens saying they’ve received or (less often) sent a suggestive picture. A lot of kids don’t seem to understand yet that sexts are like digital tattoos—that you can’t make them go away, however hard you scrub, and so you are stuck with them. Parents and teachers and anyone else with a megaphone surely have more work to do to impress on kids that it is the opposite of wise to send into the ether a compromising photo of yourself—or anyone else. But does it make sense to criminalize behavior—even if it’s by moving teens into juvenile proceedings—when so many kids are doing it?

Maybe not, especially when some kids see it, however misguidedly, as fun. Psychologist Christopher Ferguson of Texas A&M International University surveyed Hispanic women between the ages of 16 and 30 and found that “the majority were not being coerced. They viewed this as flirty and fun, as exciting,” he says. This doesn’t cancel out the problem of the girl who inadvertently gives her ex-boyfriend a weapon to blackmail her with, as Nancy Willard of the Center for Safe Internet Use worries in this report. But it complicates the picture. In the end, teen sexting is like teen sex. Some of it is scary and assaultive and some of it is more like spin the bottle—stupid, maybe, but pretty innocent, even if alarming in its permanence.

If all of this seems too tricky and nuanced for legislators or prosecutors—or parents—to get right anytime soon, Ferguson offers some reassurance. “You know, I don’t think adults realize it, but kids today are doing well for the most part,” he says. “We’ve been keeping consistent records in the U.S. since the 1960s, and they show that teens now are less violent, use drugs less, smoke less, and drink less. They stay in school more and take more AP classes. Their suicide rate is lower, and so is the teen pregnancy rate.” (There was a slight uptick in teen pregnancy in 2006, the latest year reported, but that was from a 30-year low.) Amid all the fear about sexting, it’s good to know that kids aren’t in dire trouble, relatively speaking. Too many of them have digital tattoos. But they’re in better shape than a lot of their parents were at the same age.

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