Sexting, Children, and the Law

I was 24 when I first heard the term “Internet,” still years from its daily use. I bought my first iphone this year at 43. In short, I missed out on the wonder, ease and power of electronic communication and information sharing as a kid.  But as well I was spared the dark side of these advancements. I was hardly a ladies’ man as a teenager; quite the opposite. In spite of this, or maybe because of it, I shudder to think what damage I could have done to myself armed with the power to communicate as it exists today.“Sexting,” basically the phenomenon of exchanging texts and photos of a sexual nature, is probably the most dangerous practice a kid can engage in with a phone under normal circumstances.  The cocktail that encourages it is nearly irresistible: The impulsiveness and short-sightedness of adolescence combined with a ridiculous ease of execution. Smartphones, now nearly universal, allow for the transfer of self-taken photographs within seconds.The practice struck a very mean blow to a group of children near Olympia, Washington late last year when an 8th grade girl took a frontal nude photo of herself and texted it to her then boyfriend.  The boyfriend, a few weeks later and after the two had “broken up,” shared it with another girl, this one a former friend of the one who snapped the picture. The girl who got the photo then did something else remarkably cruel, but also remarkably easy in the modern world of electronic communication: She attached a message (in part reading “Ho Alert”) and instantly forwarded the photo to her entire contacts list.The fallout was, not surprisingly, instantaneous and horrific. The photographed girl was ostracized and humiliated.  The school where all three attended erupted.  Parents panicked and demanded action, and action followed.  The two children who distributed the picture (plus a third who assisted) were eventually arrested and charged with felonies in Washington State.  The felony was for distribution of child pornography, given that the girl in the photo was 14.Ultimately, Rick Peters, the deputy DA who handled the case, did something I did several times as a juvenile prosecutor (although I never handled a case like this one- in the final years of the 20th century most cell phones lacked cameras). Peters reduced the charges to misdemeanor telephone harassment and allowed the kids into a program that will eventually see the cases dismissed.Two questions have arisen from the prosecutorial decisions in this case.  The first is whether the law should have been brought to bear at all.  The second is whether, if charges were to be brought, why they weren’t brought against the girl who photographed herself.Answering the second question first, regardless of who else was charged, I believe sparing the girl with the camera was the right move.  She was, as Peters pointed out, severely punished as it was.  In addition to the scarcely imaginable humiliation she’s experienced, she’ll continue to live with the reality of the photograph traveling cyberspace as it does to this day- and not just in theory but in schools near hers. Regardless of the fact that she made a decision, in effect, to manufacture child pornography, I see no imbalance in sparing her charges while bringing them against the distributors. Yes, she’s technically guilty of a crime.  But she’s much more a victim, and therefore the value in charging her is senseless and cruel. Conversely, the kids who made the decision to send the picture, and in particular the one who attached the offensive message and distributed to multiple kids at once, deserve to have been scared straight by the system.Addressing the first question is for some more difficult. It’s undeniably unfair that sexting, when it’s done between adults (however foolish and stupid) is nevertheless legal.  In fact it’s touted as the new and cool way for adults to rediscover their inner “naughty teen.” But when actual, underage teens do it, seeking naturally to prepare for entry into the world of their sex-obsessed adult counterparts, they’re risking arrest and prosecution.Still, in my view, there is a justification for bringing the law to bear on kids for this behavior. Simply put, the consequences of their actions are too great for the law to ignore. Without the technology at her disposal, the “Ho Alert” girl would have had a pea-shooter to aim at her former friend (relatively) rather than an automatic rifle. The same girl 25 years ago could have done little more than physically post an actual photograph in some strategic location for a time. Is her modern iteration more culpable simply because she had more dangerous tools? Possibly, if she fully appreciated those tools and knowingly sought the full advantage of them. This begs the very large question (suitable for another post) of what adolescents should be held responsible for in the first place. Emerging research about the adolescent brain suggests that their level of culpability in seemingly obvious situations needs to be re-calibrated.Is all of this arguable, including every decision ADA Peters and his office made?  Of course. But such is the balancing act a conscientious prosecutor does when confronting facts like these. Life makes law, not the other way around. I think Peters got it right.