Colorado’s Supreme Court upheld a ruling last week that required a juvenile boy to register as a sex offender after sexting and trading erotic pictures with two girls roughly his age, a split decision that highlights states’ recent struggles with applying laws passed in a less tech-heavy age.
It began, according to the court’s decision, at a 2012 Future Farmers of America conference, where the 15-year-old met two girls, one 17 and the other 15. In the months that followed, both girls came to believe they were romantically involved with the boy.
Both girls testified that he texted them a photo of his erect penis and asked for a naked selfie in return. They eventually sent the photos after first resisting, the girls testified.
(Because they were juveniles, neither the boy nor the girls are named in court documents.)
Police discovered the photos when the boy was arrested on an unrelated charge and his phone was seized, court documents say.
After a bench trial, the judge ruled that the conduct had amounted to sexual exploitation of a child and sentenced the boy to spend two years on probation as a juvenile sex offender and register as a sex offender for at least 20 years, according to Reason magazine.
The lower court observed that the photos focused on the girls’ intimate parts and “suggested a sexual coyness.”
The court also reasoned that the teen’s repeated requests for naked pictures, after sending one of his penis, showed he wanted them for “overt sexual gratification.” (“Overt sexual gratification” is a necessary element to prove the crime. That nuance may explain the reason neither girl was charged.)
The teen appealed the ruling, but last week the Colorado Supreme Court upheld it, despite a change to the state law last year that aimed to prevent teens from being prosecuted for texting nude selfies under “sexual exploitation of a child.” That change was not retroactive.
“Our holding today may strike some as unfair, especially given the recent changes in the law addressing juvenile sexting behavior,” Justice Monica Márquez wrote for the majority. “However, we must apply the law in effect at the time.”
Amy Hasinoff, an associate professor of communications at the University of Colorado at Denver who helped draft the state’s new law, told The Washington Post she was disappointed the court could not differentiate between child exploitation and what sounded like unfortunate teenage behavior.
“Asking a few times for a photo doesn’t rise to the level of what should be on the sex offender registry,” she said. “Just because you have a 15-year-old asking another 15-year-old for photos doesn’t mean you’re a threat to children for the next 20 years.”
According to a 2018 study cited by the court, “approximately one in four teenagers has received a ‘sext,’ and approximately one in seven has sent one.”
Other states have encountered similar challenges in applying the law to evolving technology, often facing questions about how to treat teens who consensually create and share sexually explicit images of themselves.
Virginia recently passed a bill to prevent a long-term registration for juveniles who consensually share nude photos with one another, and Colorado’s bill created lower offenses and civil infractions. Now, individuals can be fined or entered into a program to learn about the risks of such behavior. They cannot be forced to register as a sex offender.
The two Colorado Supreme Court justices who dissented condemned the majority’s decision.
“I anticipate that when many read or learn of the majority’s opinion in this case, they will be surprised by the result,” wrote Justice Richard L. Gabriel, noting that if the same acts were committed today, the punishment would be a civil infraction. “The juvenile should not be branded as a sex offender for having participated in such foolish – albeit not uncommon – acts.”