TxSSC

The Youth and Media Policy Working Group Initiative, a subset of the Berkman Center for Internet and Society, recently published a report entitled Sexting: Youth Practices and Legal Implications.

This report looks at a few things:
1. The definition of sexting
2. Review of the research
3. Discussion of child pornography and obscenity laws
4. Description of current and proposed legislation

Sexting is defined in this report as “youth writing sexually explicit messages, taking sexually explicit photos of themselves or others in their peer group, and transmitting those photos and/or messages to their peers,” based on a definition by NCMEC.

The exceptions to this definition include:

- “situations in which young people send sexually explicit images of themselves to adults.”
- “images sent under “duress, coercion, blackmail, or enticement.”

The legal issues primarily revolve around the question, “does sexting equate with child pornography?”

This document emphasizes the ambiguities surrounding the law and the landmark cases related to sexting and child pornography, and offers three possible responses.

1. Sexted images are excluded from child pornography law and are protected under the 1st amendment.

2. Sexted images ARE child pornography and are “exempt from First Amendment protection because the production and dissemination of such images cause[s] harm to real children.”

3. Create a “middle path” that allows for an affirmative defense. In the case of a teen who has allegedly sexted someone, an affirmative defense means the defendant gives other facts which defeats a prosecutor’s claim, even if everything the prosecutor alleges is true. As an attorney friend described it, “It’s basically like saying, even if everything a defendant is accused of doing is true, there are these other facts which excuse the defendant from any sort of liability or guilt.”

Legislative responses to sexting mostly involve modifying existing laws so that sexting is a misdemeanor offense rather than a felony. Colorado, Vermont, Missouri and Utah have changed their laws in this manner. Other states has similar legislation pending.

This document provides a much-needed compilation of research, current laws, and proposed legislation, but it also demonstrates that we’re only beginning to see the legal and social complexities surrounding sexting.