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Teenagers, Sexting, and the Law Victor C Teenagers, Sexting, and the Law Victor C. Strasburger, MD,a Harry Zimmerman, JD, Jeff R. Temple, PhD,b Sheri Madigan, PhD, R Psychc,d The phenomenon of teen sexting emerged as a result of the proliferation of abstract digital technology. More than 40 studies have established that teen sexting occurs relatively frequently and is a rising trend, commensurate with the ubiquity of smartphone ownership in teens. Studies have shown that sexting is associated with incidences of increased sexual behavior. US state laws on sexting vary widely, from decriminalization to misdemeanor charges or prosecution for child pornography with harsh sentences. Teen behavior and digital invention have outpaced the development of new laws, and this has the potential to have dire legal ramifications for teens. Separating consensual sexting from nonconsensual sexting and actual child pornography is a critical next step for law enforcement agencies and policy makers to catch up to technology. In this article, we argue that consensual teen-to-teen sexting does not warrant law enforcement involvement but rather is a health and education issue that is better addressed at home, in schools, and in aDepartment of Pediatrics, School of Medicine, University of New Mexico, Albuquerque, New Mexico; bUniversity of Texas primary care. Medical Branch, Galveston, Texas; cUniversity of Calgary, Calgary, Canada; and dAlberta Children’s Hospital Research Institute, Calgary, Canada Dr Strasburger and Mr Zimmerman conceptualized With the advent of smartphones, the interest in the phenomena associated the study, drafted the initial manuscript, and past decade has witnessed a new with new technology (eg, sexting, reviewed and revised the manuscript; Drs Temple manifestation of adolescent sexual cyberbullying, Internet addiction, and and Madigan helped to conceptualize the study and behavior known as sexting. In 2018, pornography), new research has critically reviewed and revised the manuscript; and all authors approved the final manuscript as 95% of teens owned or had access to provided some answers as to why and submitted and agree to be accountable for all 1 a smartphone. Smartphones are the how teenagers sext and what the aspects of the work. mechanism through which many teens possible penalties (if any) should be, all DOI: https://doi.org/10.1542/peds.2018-3183 are sharing explicit images and videos of which will be reviewed herein. Accepted for publication Dec 17, 2018 of themselves with other teens. Teen Address correspondence to Victor C. Strasburger, sexting behavior has created confusion DEFINITION MD, 219 Meadowbrook Dr, Bennington, VT 05201. with respect to potential legal E-mail: [email protected] repercussions (ie, the possession and Although there is no universally agreed PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, distribution of material that can be on definition of sexting, most scholars 1098-4275). fi considered child pornography). de ne it as some variation of the Copyright © 2019 by the American Academy of Notably, many child pornography laws sending or receiving of sexually explicit Pediatrics were written and passed before the pictures, videos, or text messages via FINANCIAL DISCLOSURE: The authors have indicated advent of the digital technology era, smartphone, digital camera, or they have no financial relationships relevant to this and this has resulted in a patchwork of computer.2 The National Center for article to disclose. state laws that vary from Missing and Exploited Children defines FUNDING: Supported by the Alberta Children’s noncriminalization of sexting and sexting as “youth writing sexually Hospital Foundation and the Canada Research Chairs education to misdemeanor charges or explicit messages, taking sexually Program (Dr Madigan). felony indictments that can potentially explicit photos of themselves or others POTENTIAL CONFLICT OF INTEREST: The authors have result in 20-year prison terms and in their peer group, and transmitting indicated they have no potential conflicts of interest permanent sexual offender status. those photos and/or messages to their to disclose. Indeed, 23 states still use child peers” by smartphone, computer, video pornography statutes to prosecute camera, digital camera, or video game.2 To cite: Strasburger VC, Zimmerman H, Temple teenagers caught engaging in sexting Complicating matters, there is also no JR, et al. Teenagers, Sexting, and the Law. Pediatrics. 2019;143(5):e20183183 with other teens. With increased universal definition of what “sexually Downloaded from www.aappublications.org/news by guest on September 29, 2021 PEDIATRICS Volume 143, number 5, May 2019:e20183183 STATE-OF-THE-ART REVIEW ARTICLE explicit” entails, and it can range from form of adolescent behavior and and 7.6% for girls. In 2018, a full nude body to partial or fully perhaps constitutionally protected a Pennsylvania survey of 6021 ninth- exposed breasts or male genitalia. First Amendment speech. to 12th-graders found that 29% of teens were engaged in consensual Many courts have adopted the sexting.9 In this study, nearly one- fi fi de nition rst used by a federal trial PREVALENCE OF TEEN SEXTING third of the sexts were specifically 3 court in United States v Dost. There, fi Because studies have varied with how identi ed as being consensual, the critical issue before the court was they define sexting, ages of children whereas 3% were reported as being whether the pictures depicted the 9 and teenagers studied, and conditions nonconsensual, a 10-fold difference. minors engaging in sexually explicit under which sexting has occurred, Taken together, the prevalence of conduct as defined in the federal prevalence estimates can vary widely. sexting among teens is becoming statutes that criminalize the creation The best current estimate of sexting more established. Several researchers and distribution of child pornography. fi prevalence comes from a recent have identi ed an urgent need to That court set forth 6 nonexclusive large-scale meta-analysis that clarify the characteristics of those factors in determining if “a visual statistically summarized 39 studies who sext, the conditions under which depiction of a minor constitutes published before 2017 with 110 380 sexting occurs safely versus a ‘lascivious exhibition of the genitals subjects.6 Results revealed that the harmfully, as well as the possible or pubic area’” under 18 US Code 4 prevalence of sexting behaviors is as consequences of teen sexting in terms x2255(2) (E), the definitions section follows: sending a sext (14.8%), of concerning physical (eg, early of the statutory scheme (Id. at 830) is receiving a sext (27.4%), forwarding sexual debut) and mental health as follows: a sext without consent (12.0%), and outcomes (eg, depression, anxiety, 10,11 1. whether the focal point of the having a sext forwarded without and delinquency). Pressing ’ fi visual depiction is on the child s consent (8.4%). This meta-analysis questions in the eld include the genitalia or pubic area; involved studies from multiple following: 2. whether the setting of the visual countries (22 in the United States, 12 1. When does sexting typically depiction is sexually suggestive (ie, in Europe, 2 in Australia, 1 in Canada, begin? Are there differential in a place or pose generally 1 in South Africa, and 1 in South consequences for boys and girls associated with sexual activity); Korea), and mobile devices were the who engage in sexting?6,12,13 Do 3. whether the child is depicted in an most common technology involved. outcomes differ according to the unnatural pose, or in Among studies included in the meta- type or content of material sexted? inappropriate attire, considering analysis, most examined sexting via Are multiple partners sometimes the age of the child; the sharing of images (28% of all involved? studies) or images and/or videos 4. whether the child is fully or 2. How many sexts involve coercion? (36%), whereas others examined partially clothed or nude; Research suggests that some sexts sexting via the sharing of images, may be coercive in nature.14,15 5. whether the visual depiction videos, and/or explicit text messages suggests sexual coyness or Are unwanted sexts the equivalent (36%). The prevalence of sexting did fi a willingness to engage in sexual of bullying? Adequately de ning not vary by sex but did vary by age, coercion, both qualitatively activity; and with an increase in sexting as teens and quantitatively, will be an 6. whether the visual depiction is progressed through adolescence. important step in moving this intended or designed to elicit literature forward. a sexual response in the viewer More recent research has 6 (Id. at 832). corroborated the Madigan et al 3. Is there an association between meta-analysis. A 2017 study of sexting and other risk-taking The federal definition of child 1208 12- to 18-year-old Los Angeles behaviors or an impact on pornography5 cites “graphic or teens found that 17% had sent a sext, normative sexual development or simulated lascivious exhibition of the and 24% had received a sext.7 body self-image? Is early versus genitals or pubic area” or “a minor Another 2017 study in Utah of 656 later sexting onset associated with engaging in sexually explicit conduct.” high school students found that greater or fewer physical and It confines itself to visual depictions 15.8% of boys and 13.6% of girls had mental health consequences? only, not text messages. State laws sent a sext, and 40.5% of boys and Increasing research indicates often follow the federal definition, but 30.6% of girls had received a sext.8 an association with sexual many states have now passed Similar to Madigan et al,6 Strassberg intercourse or intention to have separate sexting legislation that et al8 showed that the prevalence of sexual intercourse in the near specifically addresses this increasing forwarding sexts was 12.2% for boys future7,9,16–21 and having multiple Downloaded from www.aappublications.org/news by guest on September 29, 2021 2 STRASBURGER et al sexual partners.13 However, the constituting a form of cyberbullying consequences (embarrassment, connection between sexting and with tragic outcomes.34–36 shame, and rejection).11,14,18,39,40 drug use, anxiety and depression, 2.
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