Julie Hilden

Why Sexting Should Not Be Prosecuted as "Contributing to the Delinquency of a Minor"

By JULIE HILDEN
Wednesday, May 13, 2009

In a recent column for this site, I took issue with an attempt to prosecute teenagers' "sexting" – that is, the practice of sending semi-nude or nude photos of each other via cellphone – under anti-child-pornography laws. The column was prompted by a Pennsylvania D.A.'s threat to prosecute three teenage girls who had "sexted" photos of themselves, in which they were wearing only bras and no shirts, or were topless, to fellow students.

As I noted, the D.A's threat sparked a suit from the ACLU. The suit sought to counteract the "chilling effect" of the prosecutors' threat upon the exercise of these and other teens' free speech rights. The ACLU pointed out, as well, that child pornography is defined by law as depicting sexual activity, or depicting the lascivious display of the genitals -- and the girls' photos simply did not qualify.

However, child pornography laws are not the only laws that have been invoked to try to target sexting. In Ohio, earlier this year, there was also an attempt to use contributing-to-the-delinquency-of-a-minor laws against teens alleged to have engaged in sexting.

But these laws, too, are inapposite, and their application to sexting is potentially dangerous -- as I will explain. Here, too, authorities are trying to shoehorn the practice of sexting within the bounds of prior laws that are inapposite – a strategy that poses the danger of both free speech violations and unfair and disproportionate punishments for teens.

There is no shortcut here: Legislators need to write new laws – and/or schools must write new policies -- regarding sexting that are specifically geared toward the peculiarities of the practice as it exists among teenagers today. "Sexting" should not become a trap for the unwary; it should be addressed in a rational, consistent way, and in a way that eschews old categories to recognize its unique nature. Teens should also have clear prior notice of what they cannot do, and of what will happen to them if they break the rules.

"Contributing" Statutes – Already Bad In Themselves – Should Not Be Stretched and Twisted to Accommodate Sexting

In Ohio, earlier this year, two teens were charged with contributing to the delinquency of a minor after an assistant principal discovered them apparently "sexting" an explicit photo of a fifteen-year-old girl. The case was one factor inspiring Ohio state representatives to seek to redefine sexting by juveniles as a first-degree misdemeanor, partly in order to keep young culprits off sex-offender registries, yet still bring their actions within the criminal law.

There should be no question that it was wrong for Ohio prosecutors to invoke the contributing-to-the-delinquency-of-a-minor laws in this context – for a number of reasons.

First, the legislators' concern was an important one: Putting teen sexters on sex-offender registries alongside hardened criminals could haunt the teens for life, and cause them to be confused with rapists and child pornographers.

Second, such statutes are plainly intended to apply primarily, if not exclusively, to adults, and the penalties are tailored accordingly. Indeed, some such statutes are expressly limited to apply only to parents, guardians, and others in a caretaking relationship with the child, and thus are more or less limited to adults (although teen babysitters or older siblings could conceivably fall within such laws too). But Ohio's law is broader, referring simply to "persons" as well as to caretakers.

Third -- as a law school classmate of mine once argued, very persuasively -- such statutes are so vague on their face that they should be held to be invalid under the constitutional void-for-vagueness doctrine. Granted, courts have repeatedly held to the contrary, but I believe that's because this is an area where a concern for protecting children at all costs has led to a series of mistaken rulings that ignore clear constitutional principle. Such rulings may seem understandable, but they make constitutional law incoherent. Even the heinous crime of child rape must be, and is, carefully defined by law – yet "contributing" statutes, which can apply to comparatively minor transgressions, need not be? If the goal is to protect children from crime, the law seem to have it backward.

Generally, under the void-for-vagueness doctrine, criminal statutes – because of the gravity of the penalties they impose – must be quite clear about the conduct they describe. That is part of the Constitution's right to due process. But "contributing" statutes are extremely unclear – and intentionally so, for they function as a legal catch-all. When more specific criminal statutes do not apply, "contributing" statutes are used to round up the usual suspects – typically, adults who are often seen hanging out with teens, and who have not yet committed any other crime, but who seem like they might well have bad intentions or be "bad influences."

Readers may ask: So what? What's wrong with putting these apparent bad apples away before they ruin kids' lives? One answer is that like loitering statutes and the law allowing cars to be pulled over on a police officer's whim, "contributing" statutes are prone to misuse. Such statutes, by their nature, may be invoked when crime is suspected, but not proven – betraying our system's tenet of "guilt beyond a reasonable doubt." And, in this instance, the problem may not just be one of proof: The crime may not be able to be proven because, in fact, it was never committed in the first place.

Moreover, racism or other forms of discrimination may be behind the application of "contributing" statutes – with police claiming to be motivated only by a concern for teens, but really being motivated by something very different. Imagine that an African-American teen is hanging out with seventeen-year-old white kids in the suburbs. He's a friend, but police suspect he's a drug-dealer. Unable to prove the drug-dealing, they tell the African-American teen to get lost or else be charged with "contributing" under a statute like Ohio's.

For all these reasons, the last thing we need is to extend the reach of already-worrisome "contributing" criminal statutes, into the new area of sexting.

It's important to recall, too, that the blunt instrument of the criminal law is not the only weapon here. School and parental penalties still remain as options.

Teens' Consent and Their Free Speech Rights Should Not Be Left Out of the Analysis

Finally, there is a special feature of sexting that makes prosecuting minors under "contributing" statutes for sexting especially inappropriate: "Contributing" statutes don't look to the consent of the minor. That is probably because, with respect to virtually all of the conduct that the statutes' drafters envisioned as delinquent, the minor's consent is immaterial. Indeed, "contributing" laws' animating concern is that someone may be getting a minor to consent to something that he or she might not consent to do, absent the bad influence of another.

In contrast, consent should matter greatly when it comes to sexting – at least, sexting among roughly same-age students. As I discussed in my prior column on sexting, large age differences may eventually negate consent, but as with statutory-rape laws, it seems clear that a Romeo-and-Juliet sexting exception should apply at some point -- creating a safe harbor for same-age couples and consensual sexting.

It would be absurd, for instance, for two sixteen-year-olds who are dating to be deemed criminals because each sent a nude photo of him- or herself to the other, while meaning for the photo to be kept entirely private. Teenagers do have First Amendment rights – and, with the exception of obscene (and in this context, obscene-as-to-minors) speech, sexual speech is protected.

Teens' nonconsensual forwarding of other teens' photos, of course, is a much harder scenario – but media accounts of sexting still tend to focus more on teen sexuality, than on the real issue: forwarding without consent. In the absence of a large age gap, it is forwarding without consent that should be the law's primary – and often, only – concern.

And in this area, we need to start asking and answering difficult questions – questions that make a real effort to choose a rational place to put unconsented sexting on the broad continuum of moral blame and punishment, and to address it in a way that deters and punishes it, but also takes into account the youth of offenders.

The question is complicated: Unconsented sexting seems partly like bullying, to which it often leads, when the photos' subject is later humiliated in person by peers, or receives nasty phone calls or texts. But unconsented sexting also has a communal aspect, when photos are very widely forwarded among a large school community, that even group bullying rarely attains. As with file-sharing, we see "cat out of the bag" problems with sexting, and a sexted photo might go viral, reaching viewers well beyond the physical confines of a particular school.

Moreover, to look only at the bullying component of unconsented sexting would be to ignore its obvious sexual component. Sexism plays a role here too – a boy who is bullied, or who is the victim of unconsented sexting, may be told to "man up," whereas girls – like those in the Pennsylvania case – who are comfortable with their own sexuality may be told by the prosecutor, as those girls were, to take a class on "what it means to be a girl in today's society."

To complicate matters further, there seems to be no question that the current generation's sexual mores are somewhat different from those of generations past – but how, and how much? Should student councils weigh in on sexting incidents before school principals take action – including actions like referring culprits for prosecution? If they don't, there may be sexting prosecutions where no harm was done or meant.

Before we decide whether sexting should be a crime, a tort, or neither, and how to punish it, we need a better sense of why it has caused such an outcry in the first place. Is it because we don't want to acknowledge teen sexuality, because we are uncomfortable with teen speech rights, or because we are furious about teen bullying and humiliation – or perhaps all of the above?



Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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