We Can't Stop Teens From Sexting

Laws on sexuality haven't kept pace with technology. It's time for an update.

Posted Jul 05, 2018

Source: finwal89/Shutterstock

This year in Cleveland, Ohio, 27-year-old Edward Marrero was charged with making child pornography. He faces between 15 and 30 years in prison and registration as a sex offender for the remainder of his life. The man’s crime came to light as he was testifying in the trial of his friend, who had been arrested for possessing child pornography. Marrero testified that when he was 20, in 2011, he took explicit photos of his girlfriend, who was then 17. The former girlfriend, now in her mid-twenties, identified herself in the photos when shown them by investigators, and it appears these photos were made with her consent. Sexual age of consent in Ohio is 16, as it is in many other states in the US, so Marrero faces no charges for having sex with his then girlfriend. Only for taking pictures of her when she was under 18. Marrero is currently in federal detention pending charges. 

In 2016, a Chicago 16-year-old died by suicide, after being confronted by school officials for having made a video recording of himself having consensual sex with a classmate. School officials told the boy that he could face criminal charges of child pornography. A few hours after the confrontation, the boy was dead. 

In southern Colorado, an entire high school was rocked when it was revealed that hundreds of students were sharing nude pictures with each other, playing an elaborate game involving the photos. For several weeks, the town feared that the students could all face felony child pornography possession charges. The school canceled the last football game of the season because many of the players were involved. However, the district attorney chose not to prosecute the teens when investigations found the pictures hadn’t been posted on the internet, there was no evidence of coercion, and there were no adults involved. Instead, warning letters were sent to the families of children involved. 

In 2017, a Minnesota 14-year-old girl was charged with felony child pornography distribution for sending an explicit selfie to another student. The "child pornography" the child is charged with is a picture of her own body. The ACLU represents the child and stated: “To suggest that a juvenile who sends a sexually explicit selfie is a victim of her own act of child pornography is illogical...Child pornography laws are supposed to protect minors from predators, and [this child] is not a predator.” 

Eighty-eight percent of adults in the United States have sexted and shared or received sexually suggestive images, according to 2015 research. These numbers seem to go up every year as access to smartphones increases. Indeed, there are increasing efforts to reframe sexting as a form of positive relationship behavior and an aspect of modern courting. 

In teens, the numbers are lower, but growing. About 15% of teens report sending sexual images, and about 25% report having received them. But around 10% of teens report that sexting images have been forwarded and shared without their consent. Embarrassment and shame related to nonconsensual sharing of sexted images has also been tied to numerous tragic teen suicides. 

The problems are many, and our laws have not kept pace with our technology. We’ve placed smartphones in the hands of young people, whose bodies, sexuality, and brains are developing, and we’ve given the young people little access to effective sex education and even less information on safe use of technology.

I once attended a presentation by law enforcement to a high school. The presenter showed the students how easy it was to access location information in metadata of pictures, revealing where a teen was and when they took the picture, potentially exposing them to people who might want to harm them. That’s important information, and anyone who sexts, including adults, should know this. (Hint: Turn off GPS location services before taking the picture.) Unfortunately, most prevention and intervention efforts on teen sexting attempt to use fear to change teen behavior. When in the history of the world has fear ever been an effective control on teenagers? Instead, such fear can sometimes paradoxically create a taboo and incentivize the excitement. Fear itself is in fact, rarely an effective long-term motivator of behavioral change, especially when a behavior is frequently available and the fear is based on ambiguous and inconsistent messages. 

Numerous states in the US have now passed laws to protect teens from legal charges for taking, having or sharing nude or sexual images. Where issues of consent and bullying aren’t involved, many states have ruled that these images don’t constitute child pornography, and children aren’t to be charged as sex offenders. My home state of New Mexico is one of those states, having passed a law in 2016 that increased penalties towards convicted child pornographers, but explicitly protected those under age 18 from being charged with child pornography for images they receive. But they can still be charged for making or sending photos. And, across the country, there’s evidence that prosecution of teen sexting suffers from the same disparities as much of our legal system: teens who are Black may be more likely to face prosecution, and teens who are LGBTQ  may also face disproportionate prosecution. Males are more frequently charged than females, even in cases involving mutual sharing of pictures.

As far as I can tell, it is mostly the US that is having this teen sexting panic. Countries in which social nudity is common and accepted don’t seem to be reacting quite as punitively to these phenomena. In 2015, a German teen was charged $500 for nonconsensually sharing pictures of his ex-girlfriend with other people, but he was not charged as sex offender or child pornographer. 

Source: Pixabay

Amy Hasinoff, author of Sexting Panic, argues strongly that laws need to be changed to keep up with technology and protect teens from further harm (including criminal prosecution). She suggests that child pornography laws need to be updated to be more consistent with age of sexual consent laws: If you can have sex at age 15 or 16, then you should be able to take or share a naked or sexual image (of yourself) as well. But she also says that we need to take a better educational approach with teens, teaching them about healthy sexuality and relationships and giving them support and guidance on how to sext safely, not trying to stop them sexting altogether. In other words, we need to start practicing harm reduction strategies, addressing the issues of consent violations and social shame—which truly cause the harm—rather than attempting to eradicate or prevent this increasingly common, normal behavior.