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‘Sexting’ is thorny legal issue

- The Washington Times - Tuesday, June 23, 2009

The Vermont state Senate wasn't planning to address what has become known as "sexting" this session when lawmakers held a hearing on a proposed expansion of state sex-offender laws.

But a mother testifying before the judiciary panel referred to the phenomenon, in which teens send suggestive videos or pictures of themselves to each other on cell phones.

"One of our witnesses said that her daughter had received this video, a depiction of somebody seminude, and said, 'Wow, she didn't want it, she didn't ask for it' -- it's actually a crime to possess child pornography," said state Senate Judiciary Chairman Richard Sears, a Democrat who represents Bennington.

"It was all new to us, but the more we looked at it, the more we felt we needed to deal with it."

Vermont is not alone. Lawmakers across the country face the dilemma of trying to discourage the activity while making a distinction between a youthful mistake and a criminal act of child pornography.

One in five teen girls nationwide has sent or posted a nude or seminude photo, according to a study by the National Campaign to Prevent Teen and Unplanned Pregnancy. Fallout from the unintended spread of the pictures has been blamed for at least one death, when an 18-year-old Cincinnati high school student hanged herself last summer after her boyfriend circulated a nude cell-phone photo.

After some debate, lawmakers in Vermont decided to tweak state law so that minors caught sexting would not be charged with a felony and forced to register as sex offenders, so long as the incident was done voluntarily and without coercion. Instead, offenders could face misdemeanor charges in juvenile court.

"If somebody received it and they're under 18, it would not be a violation as long as they made reasonable attempts to destroy or eliminate the visual depiction," Mr. Sears said, stressing that the bill does not legalize the activity of sexting itself.

The measure is now law, and legislators in Utah and Ohio are pursuing a similar tack.

In some states, however, prosecutors have decided that filing criminal charges against teens who engage in sexting is the best means of prevention.

New Jersey police earlier this year arrested a 14-year-old girl for posting nude pictures of herself on a social-networking network. Prosecutors charged her with distribution of child pornography.

In Ohio, a 15-year-old girl agreed to a curfew, the loss of her cell phone and supervised Internet usage to avoid being charged with a felony.

In Pennsylvania, lawyers for the American Civil Liberties Union intervened on behalf of three teenage girls threatened with felony charges over suggestive cell-phone photos. The group is suing the district attorney for violating the girls' First Amendment rights, arguing that the photos do not constitute child pornography.

Carolyn Atwell-Davis, director of legislative affairs at the National Center for Missing and Exploited Children, cautioned against a "blanket approach" to laws that address sexting. Citing a case in Wisconsin in which a teenager attempted to blackmail other students after obtaining nude photos, she noted that not all instances of sexting are consensual.

"These cases are best handled on a case-by-case basis," she said. "It's all over the map, and you cannot deal with this in a general blanket fashion. Law enforcement and prosecutors need to have the flexibility to deal with this."

Meanwhile, members of the National Foundation for Women Legislators were on Capitol Hill last week hoping to spur legislative action on teen-dating violence, which Deputy Policy Director Jennifer Rosen described as a related issue.

"I've seen some folks try to separate it out legislatively, but the bottom line is sexting is involved in teen-dating violence," Ms. Rosen said, citing the problem of underage teens involved in abusive relationships.

"When it comes to parents, they don't even know what to look for. They don't even realize that their 14-, 15-, 16-year-old has a boyfriend or girlfriend and they're constantly texting on a cell phone. They don't realize that maybe that boyfriend is constantly checking in and needs to know where their daughter is at every point of the day," she said.