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  • Writer's pictureChris Zachar

A New Approach to Teenage 'Sexting' Prosecutions

Good thing Zack Morris didn't have a smart phone

In recent years, prosecutors across the State have begun charging teens who exchange nude selfies with possession, or even the creation of child pornography for snapping a picture and sending it to a significant other. Possession of child pornography is a felony sex offense. It requires mandatory lifetime registration as a sex offender, a minimum of three years in prison, and a $500.00 fine per image. To a large degree, the law does not discriminate based on the age of those involved. While this law was originally intended to apply to predatory child sex offenders, the statute applies equally to teenagers who engage in this common practice. Kids as young as seventeen can be subject to lifetime sex offender registration and a minimum of three years in prison for a single nude selfie.

The problem is more complicated than it sounds. Many teen sexting prosecutions originate after a breakup, and nude pictures are posted on social media or sent to people outside of the relationship. The person in the pictures is understandably upset, and parents often push for severe consequences against the person who distributed the photo. While this kind of conduct isn’t okay, it is incredibly common for hormonal teens to respond impulsively to separation or rejection. Equally common is a parent or other adult who discovers similar photographs, and thinking that they’re doing the right thing, calls the school, police, or a counselor: all of whom are mandatory child sexual abuse reporters. Once the prosecutor receives a referral and decides to file charges, the kids in this situation are legally identical to the offenders the law was designed to prosecute.

This post was prompted by an article on the news this morning. The Holmen Police Department is pushing for an ordinance that would allow officers to issue a citation to teens who send nude pictures to one another, rather than referring for criminal prosecution. By and large, the proposal seems to be a step in the right direction, but it in no way solves the disparity in how these incidents are treated by law enforcement and the court system. In one county, a teenager might be arrested, held in jail, and face mandatory prison time, and in another, the prosecutor might agree to generic charges like disorderly conduct. Other prosecutors will agree to privacy violations (like capturing an image depicting nudity) that don’t require prison time or sex offender registration, while others will refer an incident to social services or handle it informally. How a case is treated often depends solely on where a teen is arrested.

Age is also an issue. The instant a teenager turns seventeen, he or she is legally an adult, and can be prosecuted as a sex offender for having a nude picture of anyone under eighteen years old. That's right, seventeen year old kids are old enough to be prosecuted as adults, but are treated as sex offenders when they act on the normal biological urges of adolescence. A seventeen year old can even be charged with creating child pornography by taking the photo in question and sending it to another person. It doesn't matter whether the act of sending or receiving was consensual. Meanwhile, the sixteen and eleven-month year old will go into the juvenile justice system, often receiving a non-criminal diversion and typically avoid adult criminal record and sex offender registration. Arbitrary doesn't even begin to define this process.

The simple fact of the matter is that no amount of education, prevention, or anti-cyber-bullying campaigns will prevent all teenagers from sending sexual images to each other, or force them to make decisions related to sex in a mature or responsible manner. Undeveloped brains, raging hormones, and access to cell phones will often lead to sexting prosecutions. The question that Holmen is about to grapple with is whether we should be criminalizing human biology – punishing teenagers for making the poor decisions that many kids make at that age. Despite the potential First Amendment problems that come with penalizing speech, I think that this ordinance is a step in the right direction.

An ordinance like the Village of Holmen is proposing is a good example of prosecutorial discretion. It would allow a prosecutor to approach these incidents in the civil justice system, without criminal prosecution, sex offender registration, permanent records, or time behind bars. But the bad news is that this outcome is only available for incidents in the Village of Holmen. The same kid, with the same set of facts in Onalaska, La Crosse, Bangor, or West Salem would not have access to the same civil violation, leaving prosecutors with little choice but criminal prosecution.

Ideally, this type of citation should be available to the entire state as another tool for prosecutors to use instead of felony criminal prosecution. The County Board and the state legislature can both create similar civil offenses that would allow prosecutors to avoid taking the most extreme approach because they don’t have a lesser option available. I hope that other municipalities follow Holmen’s lead and pass similar ordinances that allow teenagers the occasional mistake, rather than marking them as sexual offenders for the rest of their lives.

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