“Sexting”: From bad judgment to a registered sex offender

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The technological phenomenon of “sexting” has seen such a dramatic increase in popularity that it is now defined in the Merriam Webster Dictionary: “the sending of sexually explicit messages or images by cell phone.”  Moreover, if you ask a high school student to describe sexting, you may be surprised to hear it is a social norm.  In a 2009 survey conducted by the National Campaign to Prevent Teen & Unplanned Pregnancy, twenty percent of teens said they had sexted.  That number has since increased to over twenty-five percent.  What these students and many others do not know is that sexting could land them on a sex offender registry for life.  As a result, their names and reputations could forever be ruined by the simple push of a computer key, or touch of an iPhone.

The media has taken a significant liking to cases involving sexting as they become increasingly more common across the country.

While sitting at dinner with a law school professor and several fellow law students, our professor inquired as to what we believe should happen to teenagers accused or convicted of distributing or possessing child pornography.  Since the students present were all under the age of twenty-eight, I assumed that we would agree that it is ridiculous to sentence a teenager to a life of shame by having them register on a sex offender list.  That was not the case, however, and many of us struggled in determining the circumstances under which it would be appropriate to hold a teenager to adult standards.  Recent cases across the country have advanced an ongoing dialogue concerning the difficulty of handling the rapid changes in technology versus the slower, by comparison, changes in legislation.

Ohio–The most recent high-profile case involving sexting was the Steubenville, Ohio rape case.  Seventeen-year-old Trent Mays was found guilty of taking—and later disseminating to his friends—a naked picture of the sixteen-year-old victim.  On June 14, 2013, Judge Thomas Lipps ruled that Trent Mays must register as a Tier II sex offender.  In other words, Mays must register as a sex offender every six months for the next twenty years.  Fortunately for Mays, teens’ names are not included on public websites listing sex offenders in Ohio, and the offenders can even petition the court to be removed from the list pending their rehabilitation and a series of other factors.  Regardless, Trent Mays must now register as a sex offender, a consequence Mays likely never anticipated resulting from a night of partying in high school.

Illinois–In Chicago, a suburban high school baseball coach “laid down the law” for his player’s sexting although no official charges were filed.  On May 24, 2013, Chris Livatino, the athletic director at Evanstown Township High School, informed the athletic association that his team would forfeit its game—and, in turn, their shot at the playoffs—after school officials found out female students had sent inappropriate photos to certain members of the varsity baseball team.  Those team members then sent the pictures to other team members.  Due to the number of players involved, the team did not have enough players left to even field a team.

California–On May 9, 2013, nude photos of four female high school students, two of which are minors, popped up on another male student’s personal Twitter page.  The police are currently investigating, and if the male is found to have put the photos on his account himself, he could be charged with distributing obscene material or child pornography.  In addition, those girls could also be charged with child pornography for distribution of their photos to the male.

Florida—In 2010, Phillip Alpert, then barely eighteen years old, made a costly mistake which landed him a spot on Florida’s registered sex offender list.  He and his girlfriend had gotten into an argument, and, in the heat of the moment, he sent a naked picture she had sent to him to her friends and family.  Alpert was charged with sending child pornography, pled guilty, and was forced to register as a sex offender.  Like many others in similar situations, Alpert does not believe he belongs in a sex offender registry as a result of his self-proclaimed immature behavior.

These are just a few of the cases that have made the headlines in recent years.  Every day in America, teenagers upload pictures to Facebook, send SnapChats, tweet photos, and utilize other social media platforms to post images of themselves.  This epidemic has increasingly spiraled out of control.  And while this is not a new phenomenon – the 2009 poll received a good deal of media attention – this is surely the beginning of the problems that law enforcement and school officials will be left to handle.

Child pornography laws in North Carolina do not separate an adolescent’s possession or distribution of explicit material from an adult’s possession or distribution.

An example of potential child pornography charges for these teen offenders can be found in North Carolina, where child pornography is broken down by three statutes.  However, two, which are cited below, are most commonly used in the prosecution of child pornography-related charges. 

§ 14-190.17: Second degree sexual exploitation of a minor 

Second degree sexual exploitation of a minor is otherwise known as the distribution aspect of child pornography.  One is found guilty of this when they distribute, transport, receive, sell, purchase, exchange, or solicit material that contains a visual representation of a minor engaged in sexual activity.

Mistake of age is not a defense for the crime of second-degree exploitation of a minor.  For example, this situation could arise if an eighteen year old boy was at a party, meets a girl who tells him she is eighteen, the girl sends a nude photograph of herself to the boy, and the boy then sends the photograph to his friends only to later find out the girl is only sixteen.  The boy would then be responsible for distributing child pornography.  Despite the girl saying she is eighteen, and him truly believing she is eighteen, he will still be held liable for the offense.

Distribution is a Class E felony, a class that is not currently expugnable in North Carolina. 

§ 14-190.17A: Third degree sexual exploitation of a minor 

Third degree sexual exploitation of a minor is otherwise known as the possession aspect of child pornography.  One is found guilty of this when they possess material that contains a visual representation of a minor engaging in sexual activity.  A prosecutor may in fact infer that someone engaged in sexual activity is a minor through title, text, or visual representation, even if they are in fact not a minor.  Much like the second degree sexual exploitation of a minor charge, or distribution, mistake of age is not a defense for the crime of third degree exploitation of a minor.

Possession is a Class H felony, a class which is currently expugnable in North Carolina, after a waiting period of fifteen years if found guilty.

Teenagers do not fully grasp the severity of their actions.

Michelle Sparrow, a former Assistant District Attorney in Wake County, North Carolina who is now a criminal defense attorney, believes the punishment for teen sexting does not fit the crime.  Sparrow believes that teenagers should be prosecuted just as they are: teenagers.  While she concedes that there are exceptions to the rule, it is well documented that teenagers are not as mature as adults, tending to act on impulse only to think of the consequences later.  Sparrow also believes that if there is in fact a valid determination that the accused poses a threat or danger to others, and there is no less restrictive manner in which to address the issue, then sex offender registration may be appropriate.

As an alternative to the registry, Sparrow thinks that programs currently in place in Wake County could be expanded upon.  These programs include deferrals, teen court, interventions with counselors/families/schools, and any other educational program so that the teen can fully comprehend the serious nature of the crime.  While the media appears to devote a good deal of attention to cases like these when they do arise, Sparrow said she does not see a lot of cases like these being prosecuted.  She is hopeful that the reason she does not see an influx of cases involving sexting is because the issue is being dealt with either without the justice system being involved, or in a more age appropriate manner.

While parents may be quick to point the finger at legislators for coming up with such tough laws, it is important to remember that an increase in technology means an increase in responsibility.  Parents would be wise to closely monitor the electronics their children use.  Having access to your child’s cell phone, email, Facebook, Twitter, etc., may not be the popular choice for your teenager, but it may save them from a criminal conviction.  In fact, in a poll conducted last year, ninety-three percent of adults responded that parents should play a major role in educating teens on sexting, and only twenty percent favored treating the act as a sex crime.

While writing this article I was reminded of something my parents (thanks Mom and Dad) frequently said to me growing up: “I am your parent first, your friend second.”  The truth of that statement has never rung more true.  As uncomfortable of a topic as it may be, it is up to parents to decide what is more awkward: discussing the consequences of sexting with their child, or watching their child join the national sex offender registry.