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April 2011 Archives

"Sexting" is harmful to teens but education, not prosecution should be preferred response

If you are a teenager or a parent of a teenager, you know that using cell phones to send text messages is becoming the favored way of teens to communicate with each other.  However, there is a subset of texting that is a real problem and that is "sexting."  For those who are unfamiliar, sexting is the practice of using a cell phone camera to take nude or provocative pictures of oneself or other and then sending the pictures to others through the text messaging function of the phone.  What teens need to understand is that once a picture is in an electronic format and is sent to anyone, it can be forwarded to everyone.  A tragic example of the damage sexting can cause is what happened to Jesse Logan.  Jesse took nude photos of herself and sent them to her boyfriend.  Later, she and the boyfriend broke up.  The boyfriend sent the pictures to other girls at school who, in turn, severely harassed Jesse calling her "slut," "whore" and other such insults.  Jesse became severely depressed and at the age of 18 committed suicide. Recognizing this is a problem, some local prosecutors are trying to do something controversial - prosecute or threaten prosecution for sexting by filing charges under child pornography laws. In Wyoming County, Pennsylvania, in response to various forms of sexting, the district attorney threatened to prosecute a number of teens under child pornography laws unless they agreed to take a "reeducation" course and to write essays stating that their actions were wrong.  Most of the teens and their parents agreed but three of them filed a civil rights suit in Federal court alleging that their rights to free speech were being violated by the threat of prospection and compelled speech in the essays.  The pictures involving these teens did not depict them as nude nor were they engaged in any sexual act in the pictures but the prosecutor said they were "provocative."   In the federal case of Miller et al v. Skumanick, a federal district judge found sufficient grounds to issue a temporary restraining order against the prosecutor barring him from prosecuting the girls over the photographs at issue.  Among the grounds cited by the judge were the likelihood that the plaintiffs would prevail on their claim that the photographs were not child pornography, the chilling effect on free expression from the threat of prosecution and the right to not be compelled to make statements with which one disagreed and the lack of harm to the prosecutor and the state if there was a temporary restraining order entered while the case proceeded.  The case is now on appeal before the U.S. Court of Appeals for the Third Circuit in Philadelphia. In New Jersey, a bill is in the legislature which would make it possible to divert minors caught sexting from criminal prosecution into a mandatory educational program.  This seems a more constructive approach to this serious problem. As a parent, I view sexting as a serious issue that can threaten the welfare of teens.  However, as both a parent and as a lawyer, it seems to me that prosecuting teenagers, the very people whom child pornography laws are intended to protect, is a clumsy blunt instrument.  Education by parents, schools and also public awareness campaigns of the dangers of engaging in such behavior can be useful instead.

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