While felony child pornography charges remain a possibility in appropriate cases, most sexting incidents are best handled less aggressively, experts agree.
The headlines are flashy: "Teen arrested on child pornography charges for sexting." We've seen them recently in Chicago suburbs and elsewhere around the country as law enforcement, schools, and parents try to come to terms with the volatile mix of adolescent behavior (overcharged sexuality meets underdeveloped judgment) and digital information technology that can spread a misbegotten message in a nanosecond.
An example of sexting is taking a provocative picture of oneself and sending it to a boyfriend or girlfriend. Sometimes the transmission ends there, but other times the powers of technology are abused and things quickly get out of hand. A teenage boy, for example, might grab his buddy's phone, see a photo of an unclad girl, and text it anew to the entire football team, or the entire school. Meanwhile, the young photo subject is completely humiliated.
That humiliation can be devastating to a fragile victim. Still, is charging a 15- or 16-year-old with felony child pornography, a prosecution that could theoretically be transferred to adult court and result in a sex-offender label for the defendant, the best way to handle these incidents?
The sexting statute
Most experts agree that the goal, particularly in Illinois, is to handle these cases either in juvenile court or to use a little-known civil statute. That statute was drafted in cooperation with the ACLU, the Illinois Office of the State's Attorney Appellate Prosecutor, the Juvenile Justice Initiative, and other organizations. Known as Illinois' "sexting law," it stands as part of the Minor Requiring Authoritative Intervention statute, 705 ILCS 405/3 et seq.
The statute makes clear that individuals "shall not distribute or disseminate an indecent visual depiction of another minor through the use of a computer or electronic communication device." But it says those who violate the rule may be found in need of supervision, ordered into counseling or other supportive services, or required to perform community service.
The provision also states, however, that a child could be criminally charged under the state's pornography laws.
"I think they're resolving most of the cases now without felony charges," said Mary Dixon, legislative director for the ACLU of Illinois. "We're not completely routing them [students] away from bearing the consequences. There's usually an injury to a young girl, but not always. I thought it was a good result in Illinois."
Joshua Herman, a Peoria lawyer who represents local governments and school districts, wrote a lengthy article about sexting for the IBJ a few years ago (Sexting: It's No Joke, It's a Crime, April 2010). In an interview, he said that he advises school districts to put policies in place making it clear to students that having possession of such photos and disseminating them is against school policy and is a crime. More and more schools are adopting such policies, he said.
"The child pornography laws are the most serious that can apply to some of these factual scenarios," Herman said. "Many state's attorneys enter into informal agreements to not prosecute if the minor engages in community service."
It's very fact specific, though, he noted. Most of it is innocent behavior, "teenagers doing what teenagers have been doing for centuries." Then there's the more serious behavior such as that discussed above, where a minor disseminates a photo widely and has collected many such images.
A trip to the police station
Every state's attorney has the right to look at the facts and use his or her discretion in deciding the appropriate consequence for a minor, said Matt Jones, associate director of the Illinois Office of the State's Attorneys Appellate Prosecutor.
Sara Goldsmith Schwartz of the Massachusetts law firm of Schwartz Hannum notes on the firm's legal blog (http://shpclaw.com/2013/education-blog/sexting-news-more-of-it-and-more-prosecutions/) that 20 states now have specific sexting laws as of last year, including Illinois. Her partner, William Hannum, said his firm strongly advises the schools it represents to have frank, age appropriate discussions with students about sexting, advising them that it could be a crime. In addition, he advises schools to handle a case involving broad dissemination of a young girl's photo under the school's anti-bullying policies.
Also important is that "there be good relationships between schools and local police agencies," Hannum said. "Typically, though, schools aren't going to run off to the authorities in the hopes of getting their kids prosecuted."
In the Boston area recently, Hannum said, there was a case where a group of boys disseminated a picture. "The school worked with police and had all the boys brought down to the police station" for a scared-straight experience, he said. None were charged with pornography-related crimes.