"Sexting" -- Where Are We Now?

4/12/2013

Sexting: Where Are We Now?

Priscilla Grantham Sr. Research Counsel Nat’l Center for Justice and the Rule of Law

Overview • Define & examine “Sexting” - difficulties in classifying images • Statistics relating to sexting • Examine concerns re: sexting • Summarize range of options available to investigators, prosecutors, courts and schools. • Review relevant laws & proposed legislation

Sexting: various definitions

• The creation of images by minors that meet the statutory definition of child pornography

• The sending of sexually explicit texts or nude or partially nude images of minors by minors

• The production, possession, and dissemination of nude or sexual materials of underage persons (under the age of 18), when such materials were voluntarily produced or distributed by the underage person themselves.

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• Often forwarded by initial recipient without senders consent or knowledge.

• Photos go “viral,” reaching large audiences as forwarded from ggproup to group.

Main Scenarios for Sexting

1) Exchange of images solely between romantic partners 2) Exchanges between partners that are shared with others 3) Exchanges between people not yet in a relationship, but at least one person hopes to be

On One Hand…

CDC report – 47.8% high school students have engaged in sexual intercourse. 16

45 % of teens who reported having sex also reported having at least one sexting activity. 17

Sexting is the modern way for teens to explore sexuality – like spin the bottle.

Truth or Dare for the Millennial generation

Safer than traditional exploration of sexuality - no physical contact.18

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On the Other Hand . . .

• NCMEC study ––5.45.4% of child pornography images on Internet appear to be self produced . Amounts to hundreds of thousands of images.19

Possible Consequences

Sexual Exploitation

Embarrassment

Commercial Exploitation

Harassment / Suicide

Prosecution under CP laws

Sex Offender Registry

Sexualization Societal perception of of minors children as sexual objects

further abuse & exploitation

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““Hey,Hey, look at this!”this!” 1

Teens saying it’s common for sexted images to be shared w/ people other than intended recipient: . Girls – 36% . Boys – 39% Teens who’ve seen sexted images not intended for them: . Girls - 25% . Boys - 33%

http://www.thenationalcampaign.org/SEXTECH/PDF/SexTech_Summary.pdf

“He / She Made Me Do It!”It!”

Almost 3x more girls than boys cited pressure from opposite sex as reason for sextingsexting..

Girls: 51 %

Guys: 18 %

“They Made Me Do ItIt!”!”

Almost equal % of boys and girls citing pressure from friends as reason for sexting

Guys: 24 %

Girls: 23 %

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“But, We’re Soul Mates…”

15% of teens who’ve sent nude/semi-nude/semi- nude pics of themselves have done so to someone they only knew online.9

http://www.thenationalcampaign.org/SEXTECH/PDF/SexTech_Summary.pdf

Why Sexting / Why Now?

• Accessibility of technology

• Characteristics of tweens & teens

• Exposure to increasingly younger sexualized “role models”

1. Accessibility To Technology4

• 1212--1717 y/o with cell phones: 77% • 1212--1717 y/o with smart phones: 23%

• Median number of texts sent per day by 1212--1717 y/o: 60

http://www.pewinternet.org/Reports/2012/Teens‐and‐smartphones.aspx

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If your kids are awake, they’re probably online

“The average young American now spends practically every waking minute – except for the time in school – using a smart phone, computer, television, or other electronic device, according to a new study from the Kaiser Family Foundation.”

The New York Times, Jan. 20, 2010

2. Characteristics Of Tweens/ Teens

• Instant gratification generation

• Brain still “under construction” until 20‐ something

• S.Ct. noted the “impetuous and ill‐ considered actions and decisions” of adolescents, who are “overrepresented statistically in virtually every category of 5 reckless behavior.”

• Inquisitive

• On cutting edge of technology

• On forefront of trends: blogging, FB, Twitter…

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T.T.Y.L ~ How Teens Contact Friends Daily

Method: % Talk on land line phone: 19% Call on cell phone: 39 % Email: 6% Social Network: 29 % Talk face‐to‐face: 35 % Text: 63 %

Teens use cell phones as cameras

Roughly 90% of cell phones have cameras

http://blog.nielsen.com/nielsenwire/online_mobile/u-s-teen-mobile-report-calling-yesterday-texting-today-using-apps-tomorrow/

You Ought to be in Pictures –

Take pictures: 82.5 % SdSend / receive pitictures: 63.5 % Record videos: 53.8 % Send / receive videos: 31.8 %

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42 % of teens surveyed say they could text blindfolded. Nearly half of U.S. teens say their social life would end or be worsened without their cell phone.

Harris Interactive, A Generation Unplugged, Sept. 2009.

A Natural Progression?

Then: I’ll show you mine if you show me yours.

Now: I’ll show you mine and you show mine to everyone else in cyberspace.

3. ROLE MODELS / MEDIA

10 11 12

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Youth Obsessed Culture?

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Sexting & the Law ––Considerations:Considerations:

• Apply existing cp statutes

• New legislation

• Can instances of sextingbe differentiated?

• CldiCould crim. l aws b e enf orced di in consi ittstent manner?

• Would laws have deterrent effect on minors?

• Alternative methods to address problems and harms of sexting?

Child Pornography Laws:

Both Federal and states’ laws prohibit production and dissemination of pornography featuring minors engaged in sexually explicit conduct.

18 U.S.C. §§ 2251‐2260 (2008).

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Child pornography:

Visual depiction of sexually explicit conduct * where production involves the use of a minor engaging in condtduct… *Actual or Simulated graphic or simulated lascivious exhibition of genital or pubic area

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Are minors who sext child pornographers?

• One who sends photo to another: productionproduction,, possession or dissemination of cp • Recipient: possession of cp (image is on his/her phone) • Recipient who forwards image: distribution

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“Protected Class” Principle:

Common law – the class of persons a statute is meant to protect should not be subject to punishment under that statute.

Not an Absolute…

Statute prohibits commission of lewd acts w/ minor under 14. 13 year old boy fondles 4 y/o – judged dlidelinquent . Ct: law meant to protect “minors under age of 14 from all persons, even from other minors under age of 14.”

Cote H. v. Nevada, 175 P.3d 906 (Nev. 2008).

CP laws do not distinguish btwn protected class of minors and adults who engage in prohibited behavior.

No exceptions from criminal culpability when person creating, possessing, or distributing image is a minor.

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CP Prosecution --ConsiderationsConsiderations

• Are images CP under statute or case law?

• If “lascivious exhibition,” does it meet Dost or other criteria?

• Was photo taken “consensually”?

• Is “victim” person who sent photo?

• Is victim willing to testify?

• What are societal goals?

Message to Minors…

• As of 2/2009, arrests of juveniles under cp laws for sexting had occurred in Ala, Conn,,, FL, N.Y., N.J., Mich,,,,, Ohio, PA, TX, Kansas, Wisconsin, and Utah. • “Kids, these photos can ruin your life, and just to prove it, we’re going to ruin your lives.”

Sex Offender Registration

• 38 states include juveniles in sex offender registries • Alaska, Florida, Maine register juveniles only if tried as adults • Indiana registers juveniles if 14 or over • South Dakota registers juveniles 15 or over • Implications of SORNA?

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Colorado

• Couple (17 & 15) exchanged cell phone images they recorded while engaging in consensual sex; girl’s mom found picspics.. 23 • Couple remanded into counseling • Factors considered by investigators:

. Age of couple

. Nature of the images

. Images not distributed

. No “malicious actions” involved

Let’s Make a Deal…25

(Prosecutorial Discretion & Sexting Cases) • 14 y/o boy sent sexually explicit photo of ex girlfriend to two 13 y/o classmates -faced possible charges of possession of cp (+) registration as sex offenders • Prosecutor instead charged boys with telephone harassment:

. Apologize to victim

. Attend court ordered program about dangers of sexting

. Work w/ school to create awareness program about sexting

States’ Responses:

• Amend existing laws to reduce criminal penalties & est. programs to address sexting

• Amend or ppgass new legislation that increases punishments for sexting or explicitly criminalizes sexting for the first time

• Propose legislation & resolutions w/out enacting new laws.

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http://mobilemediaguard.com/state_main.html

Sexting Legislation

• At least 24 states have introduced bills or resolutions aimed at sexting.

. www.ndaa.org

. www.ncsl.org

• General goals:

. Educate young people about risks

. Deterence

. Apply appropriate penalties

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Vermont

Enacted sexting statute: “Minor Electronically Disseminating Indecent Material to Another Person” • Tried as juvenile • No SO registration • Record expunged

VT. STAT. ANN. 13 §2802B (2010)

North Dakota:

Class A Misdemeanor: • Knowing of its character and content, • Distribute or publish, electronically or otherwise, • Sexually expressive image (“a photograph or visual representation that exhibits a nude or partially denuded human figure”) • With intent to cause emotional harm or humiliation to any individual depicted in the image.

N.D. CENT. CODE §12-1-27.1-01(13) (Supp. 2009)

Florida —Defines— Defines sextingsexting::

Minor commits offense of sexting if he/she knowingly uses computer or other device to transmit or distribute photograph or video of him/herself which depicts nudity & is harmful to minors, or knowingly possesses such photograph or video that was transmitted or distributed to a minor from another minor.

H.B. 75 (signed by Governor 6/21/2011; becomes law 10/1/2011)

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FloridaFlorida::

• 1st offense: nonnon--criminalcriminal violation punishable by 8 hrs community service or $60.00 fine; • 2nd offense: 1st degree misdemeanor; up to 1 year in jail and $1000.00 fine; • 3rd offense: 3rd degree felony; up to 5 years imprisonment, and $5000.00 fine.

29 New Jersey: 3 Pieces of Proposed Legislation:

• Requires school districts to disseminate info to students & parents on dangers of sexting;sexting;

• Creates diversionary program for juveniles criminally charged for sexting or posting sexual images; &

• Requires retail stores to include brochures re: sexting when selling cell phones and cell services.

Connecticut

Sexting law applies electronic transmission or possession of CP by persons 13 to 15 y/o (for transmission) or 13 to 17 y/o (for possession): • Class A misdemeanor rather than a felony. • Recipient must be 13 to 17 y/o, & sender must be 13 to 15 y/o and be subject of depiction. • no registration as sex offender. • Punishable by up to one year in prison, a fine of up to $ 2,000, or both.

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Illinois:

Criminal offense to sell / distribute a videotape or nude image of another person:

• W/out written consent, and • W/ intent to damage a person’s reputation (Includes uploading images to Internet) • Punishable by up to a year in jail & $2,500 fine. H.R. 4583, 96th Gen. AssemAssem.,., (Ill. 2010) (signed by Governor, July 19, 2010).

South Carolina:

H.B. 4504 makes sexting illegal for kids 13-13-1717 • Imposes fine and educational program for offenders • Record expunged upon completion of program and payment of fine.

H.R. 4504, 118th Gen. Assem.,2d Reg. Sess., (S.C. 2010)

Arizona:

Unlawful use of EE--CommunicationCommunication Device by a Minor

• Petty offense to knowingly or intentionally use e- communication device to transmit sex. explicit pic. of minor to 1 other person;

• Class 3 misdemeanor if sent to more than 1 person; • Petty offense for juvenile to possess such image;

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Arizona

No violation if juvenile did not solicit image, did not forward it, & took reasonable steps to destroy it.

S. 1266, 49th Leg., 2d Reg. Sess., (Ariz. 2010) (signed by Governor May 7, 2010)

Utah:

Reduces penalties for minors that distribute pornographic material or deal in material harmful to a minor

H.R. 14, 58th Leg., Gen. Sess., (Utah 2009)

Ohio:

H.B. 132 would prohibit minors from creating, sending, exch angi ng et c. ph ot os / vid eos depicting any minor in a state of nudity

No defense that minor who sent, exchanged, etc. photo depicting himself/ herself Reduces sexting from felony to misdemeanor

H.R. 132 , 128th Gen. Assem., Reg. Sess., (2009‐2010 Ohio)

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30 Nebraska

Affirmative defense under CP law if:

• Recipient of sexually explicit image of minor is under 18

• Subject of image is at least 15 years of age

• Subject of the image voluntarily created the image

• Recipient did not make image available to anyone else

1. See NATIONAL CAMPAIGN TO PREVENT TEEN AND UNPLANNED PREGNANCY, SEX AND TECH: RESULTS FROM A SURVEY OF TEENS AND YOUNG ADULTS 1 (2008), available at http://www.thenationalcampaign.org/SEXTECH/PDF/SexTech_Summary.pdf 2. http://www.cosmogirl.com/blog/sex-and-tech

3. Amanda Lenhart, Pew Internet and American Life Project, TEENS AND SEXTING (2009), available at http://pewinternet.org/~/media//Files/Reports/2009/PIP_Teens_and_Sexting.pdf 4. Amanda Lenhart, Pew Internet and American Life Project, TEENS AND MOBILE PHONES, available at http://www.pewinternet.org/Reports/2010/Teens-and-Mobile- Phones.aspx. 5. Roper v. Simmons, 543 U.S. 551, 569 (2005), (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). 6. http://image3.examiner.com/images/blog/wysiwyg/image/Miley_Cyrus_pole_dance.jpg 7. http://images.mirror.co.uk/upl/m3/feb2008/7/7/6043D2DA-940B-F949- 3DA3881FC0457A53.jpg 8. http://msnbcmedia1.msn.com/j/msnbc/Components/Photo/_new/080722-Gossip-Girl- vmed-4p.widec.jpg 9. http://adage.com/images/bin/image/photo/gossipgirl-inappropriate072208.jpg

10. http://www.costumesupercenter.com/girls+costumes‐occupational/CH00596‐french‐maid‐child‐ costume.html

11. http://www.costumesupercenter.com/girls+costumes‐cartoon+characters/R882963‐bratz‐cheerleader‐ child.html

12. http://www.halloweenexpress.com/mega‐star‐child‐costume‐p‐750.html

13. http://nymag.com/fashion/models/anorgaard/amandanorgaard/#slide22&ss3

14. http://nymag.com/fashion/models/anorgaard/amandanorgaard/#slide45&ss3

15. http://nymag.com/fashion/models/lwixson/lindseywixson/#slide16&ss2

16. CTRS. FOR DISEASE CONTROL & PREVENTION, TRENDS IN THE PREVALENCE OF SEXUAL BEHAVIORS 1 (2007), http://www.cdc.gov/HealthyYouth/yrbs07_ us_ sexual_behaviors _ trend.pdf.

17. ASSOCIATED PRESS AND MUSIC TELEVISION, A THIN LINE 2 (2009), http://www.athinline.org/MTV‐ AP_Digital_Abuse_Study_Executive_Summary.pdf

18. Peter Cummings, York University, Presentation at the Roundtable on Youth, Sexuality, Technology: Children’s Rights, Voices, Technology, Sexuality 4 (May 24, 2009), available at http://www.arts.yorku.ca/huma/cummingp/documents/TeenSextingbyPeterCummingMay262009.pdf

19. Mary Graw Leary, Self‐Produced Child Pornography: The Appropriate Societal Response to Juvenile Self‐Sexual Exploitation, 15 VA. J. SOC. POL’Y & L. 1, 19 (2007).

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20. Deborah Feyerick & Sheila Steffen, ‘Sexting’ Lands Teen on Sex Offender List, CNN, April 8, 2009, http://www.cnn.com/2009/CRIME/04/07/sexting.busts. 21. State v. Canal, 773 N.W.2d 528 (Iowa 2009). 22. A.H. v. State, 949 So.2d 234 (Fla.App. 1 Dist. 2007).

23. Jennifer H. Cunningham, 14‐Year‐Old Girl Faces Pornography Charge, NORTHJERSEY.COM, March 25, 2009, available at http://www.northjersey.com/passaic/14‐year‐ old_girl_faces_pornography_charge.html. 24. Lance Benzel, Teens Won’t Face Trial for Cell Phone Sex Photos, Gazette (Colorado Springs), Apr. 10, 2009, available at http://www.gazette.com/articles/children‐51546‐office‐ case.htm l?re ferrer= digg 25. Teens Avoid Charges in Sexting Case, Feb. 17, 2010, available at http://www.seattlepi.com/local/415555_sexting28.html 26. Miller v. Skumanick , 605 F. Supp. 2d 634 (M.D. Pa. 2009). 27. http://www.nationallampoon.com/files/2009/07/miley‐sexting.jpg 28. http://www.vanityfair.com/culture/features/2008/06/miley200806?currentPage=2 29. A.B. 1560 (status: pending); A.B. 1561 (status: June 29, 2011. Sent to Governor); A.B. 1562 (status: pending).

30. NEB. REV. STAT. ANN. §28‐1463.03 (2010); NEB. REV. STAT. ANN. §28‐813.01 (2010).

Thank You

Priscilla Grantham [email protected] (662) 915915--69296929