- The Washington Times - Thursday, May 11, 2017

Child pornography charges against a pair of illegal immigrants previously accused of raping a fellow student at Rockville High School have refocused attention on the problem of teen sexting.

Montgomery County prosecutors charged Henry Sanchez Milian, 18, and Jose Montano, 17, with possession of child pornography after discovering an explicit video of a 14-year-old girl on the defendants’ cellphones. But the girl — who recorded and first sent the video — has not been charged.

Prosecutors filed the child pornography charges after an investigation determined that the initial rape charges could not be supported.

The case, which had drawn international attention, reveals vast discrepancies in how jurisdictions define, legislate and punish sexting — which, some legal experts say, warrants no judicial punishment at all.

“This is not an issue for prosecution, this is not an issue for the courts, and this is not an issue for police,” said Riya Shah, an attorney with the Juvenile Law Center in Philadelphia. “This is an issue for parents.”

Sexting has occurred for as long as teens have had cameras in their cellphones, but most states still lack legislation to target the issue.

“It’s clearly an area where the law has not caught up to technology,” said David Moyse, a defense attorney in the Rockville case. “It’s definitely something that needs to be addressed.”

So far 20 states have enacted laws to address minors who send nude photos to each other, setting penalties for teens who sext less severe than those for adults who swap similar photos of minors.

But only nine of the 20 states used the term “sexting” in their legislation, and penalties can range from mandatory counseling to felony charges, according to a 2015 report by the Cyberbullying Research Center.

In jurisdictions without sexting laws — which includes the District, Maryland and Virginia — the act may be punished under pre-existing laws that target child pornography.

“Child pornography is not the appropriate term to apply to teenagers who are permissibly sharing naked images of each other,” said Mr. Moyse, who called the charges against Mr. Milian and Mr. Montano a “misapplication.”

Roman Korionoff, a spokesman for the Montgomery County State’s Attorney Office, said while it would be possible to charge the 14-year-old girl with distribution of child pornography, the decision is “left to the discretion of the prosecutors.”

“There’ll be some information and evidence that I think will provide context as to why certain charges are being brought and why some other charges are not being brought,” the spokesman said. “But we’ll leave that discussion for [the] court.”

Mr. Korionoff said Mr. Milian will be charged with possession of child pornography, which carries a potential sentence of up to five years.

Defense lawyers for Mr. Montano, whose case has been transferred to juvenile court, said he will face charges of distributing and possessing child pornography and, if convicted, a sentence of up to 10 years.

Similar cases around the country have drawn fierce criticism from juvenile law experts, many of whom argue that child pornography laws should protect — not prosecute — minors.

Half of sexting cases are settled outside the judicial system, many more are dismissed, and only a small percentage go to criminal trial, according to data collected by the Journal of the American Academy of Psychiatry and the Law.

Still, bringing children to the courtroom for sexting unleashes undue consequences for young people, Ms. Shah said.

“Educating kids about cellphone use and what happens to photographs when you take a photo of yourself and put it out into the world — educating kids about that is really important,” she said. “But creating a record of their crime in the juvenile justice system is an exaggerated response to the situation.”


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