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Legislators rethinking how to regulate teens and ‘sexting’

By Tamar Lewin
New York Times / March 21, 2010

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NEW YORK — In Iowa, Jorge Canal is on the sex offenders registry because, at 18, he was convicted of distributing obscene materials to a minor after he sent a picture of his penis by cellphone to a 14-year-old female friend who had requested it.

In Florida, Phillip Alpert, then 18, was charged with distributing child pornography and put on the sex offenders registry because after a fight, he sent a photograph of his nude 16-year old girlfriend by e-mail to dozens of people, including her parents.

In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting’’ — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.

But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.

Last year, Nebraska, Utah, and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.

And on Wednesday, the first federal appellate opinion in a sexting case recognized that a prosecutor had gone too far in trying to enforce adult moral standards. The opinion upheld a block on a district attorney who threatened to bring child pornography charges against girls whose pictures showing themselves scantily dressed appeared on classmates’ cellphones.

“There’s a lot of confusion about how to regulate cellphones and sex and 16-year-olds,’’ said Amy Adler, a law professor at New York University. “We’re at this cultural shift, not only because of the technology, but because of what’s happening in terms of the representation of teen sexuality as you can see on ‘Gossip Girl.’ ’’

Last year, a 14-year-old New Jersey girl was arrested and charged with possession and distribution of child pornography after posting dozens of sexually explicit photographs of herself on MySpace.

Such cases, lawyers say, are far afield from what the child pornography laws were intended for. So, too, was the case of Canal, which was upheld last year by the Iowa Supreme Court.

Canal was 18 when he sent the picture of his erect penis to a 14-year-old schoolmate, along with another picture of his face, with the text “I love you’’ on it. The girl thought she had erased the image, but her parents found it and passed it to the police.

“The child pornography law was about protecting children from pedophiles,’’ Adler said. “While sexting is bad judgment, it’s simply not what the Supreme Court had in mind when it crafted the child pornography law. It just doesn’t make sense that in a lot of the sexting situations, the pornographer and the victim are one and the same person.’’

As a practical matter, young people are rarely, if ever, jailed under the child pornography laws for the practice.

Some of the 14 states considering legislation would make sexting a misdemeanor, while others would treat it like juvenile offenses such as truancy or running away.

“Many jurisdictions are creating a separate offense for these situations,’’ said Mary Leary, a law professor at Catholic University. “They’re moving it to family or juvenile court. The more choices available to a prosecutor, including diverting the case entirely from the juvenile justice system, the better.’’

She and many others believe that some criminal penalties should remain on the books.

Jesse Weins, chairman of the criminal justice department at Dakota Wesleyan University, said that because the legal code functioned as a guide to acceptable behavior, “there should be something there, even if oftentimes it doesn’t make sense to prosecute.’’

But there are those who favor decriminalization.

“Generally this should be an education issue,’’ said Witold Walczak, legal director of the Pennsylvania American Civil Liberties Union. “No one disputes that sexting can have very bad consequences, and no parent wants kids sending out naked images. But if you’ve got thousands of kids engaging in this, are you going to criminalize all of them?’’

One recent survey found that about one in five teenagers reported having engaged in sexting. Another found that almost half the boys in coed high schools had seen a picture depicting a female classmate nude.

There are two basic scenarios. In one, a teenager shares a nude picture, usually with a romantic partner. In the other, a partner, or more commonly a former partner, distributes the image.

The new Nebraska law makes that distinction, giving a pass to children under 18 who send out their own photograph to a willing recipient who is at least 15. On the other hand, a teenager who passes the photograph on to friends could face a felony child pornography charge and five years in prison.