The Misguided War on Sexting

America is taking a punitive approach to teens who send each other explicit messages-and it's backfiring.

To save kids from the dangers of sexting, we should stop trying to save kids from the dangers of sexting. So suggests Amy Adele Hasinoff, an assistant professor of communications at the University of Colorado Denver, in her counterintuitive but convincing new book, Sexting Panic: Rethinking Criminalization, Privacy, and Consent (University of Illinois Press).

Hasinoff argues that the current political and social approach to sexy texts is a well-intentioned mess. Currently, sexting is seen by the right, by the left, by parents, by schools, and by courts as a danger in itself. Teens—especially teen girls—are seen as lacking impulse control and/or self-esteem. Awash in hormones and lacking in judgment, they send naked digital pictures of themselves out into the ether, where said shots are inevitably distributed far and wide, resulting in humiliation and irreparable damage.

Sexting isn't really all that new; teens have been exchanging explicit messages at least since the invention of language. But up-to-date smartphone technology makes the old seem unusual and frightening. Sexting has been framed as an issue of pathological identity: There is a certain person who sexts, and that person is broken, ill, undeveloped, wrong. Authorities try to deal with sexting, therefore, by dealing with the person who does it. Sometimes, as Hasinoff documents, this is done through various kinds of treatments. Programs focus on trying to boost girls' self-esteem so that they won't feel the need for validation from their boyfriends and thus won't text naked pictures.

Such programs have demonstrated very little success, but at least they don't directly harm teens. Other responses are more dangerous. Teen girls can be prosecuted under child pornography laws for taking nude photos of themselves. As one judge said, incredulously, "It seems like the child here [is]…the victim, the perpetrator, and the accomplice. I mean, does that make any sense?"

If sexting is framed as dangerous in itself, girls who sext become perpetrators. And that means the state can target them for punishment. Among other consequences, this means sexting laws become a way parents can use law enforcement to squash relationships they don't like. (Hasinoff points to instances in which parents used sexts to prosecute their children's same-sex boyfriends or girlfriends.)

Law enforcement has shown little ability to punish, or interest in punishing, the people who distribute teen sexts, or who violate teen girls' trust for the purpose of humiliating or damaging them. Courts often assume that any sexual image will automatically and always be distributed. The crime is taking the image in the first place, and naively, stupidly assuming it will remain private. Hasinoff points to one case (A.H. v. State, 2007), in which a judge convicted a teen sexter whose images were never distributed on the grounds that she should have known that her boyfriend would eventually send them around.

In fact, Hasinoff notes that "the largest and most representative peer-reviewed study," published in Pediatrics in 2012, found that only 10 percent of young sexters reported having a private image forwarded to a third party. That's not negligible, but it's not inevitable either. And perhaps it could be reduced further if America rethought its approach to sexting. Specifically, Hasinoff argues, we need to start seeing sexting as speech, or at least as legitimate sexual expression.

Most people accept that adults sext for a range of reasons. When surveyed, Hasinoff reports, younger people say they sext for much the same reasons: because it's fun, because it's sexy, because they want to stay in touch with an intimate friend, because flirting over SMS is in many ways socially safer than flirting in person. Parents, understandably, may not be eager to hear that their children are sexting, just as they may not be eager to have their kids date. But sexting isn't innately harmful or pathological or evil, and the worst-case consequences are less dire than for many other forms of teen sexual expression. Criminalizing it doesn't make sense.

If we start to see sexting as normal rather than pathological, Hasinoff argues, we can take steps toward making it safer. Rather than focusing education programs on telling kids not to sext, we could move the focus toward emphasizing that it is immoral to share private information without consent. School rules could try to target those who violate privacy, rather than punish teens whose sole crime is taking pictures of themselves. There are possible novel technological solutions as well. Images could be locked so that they can't be sent to a third party without permission, for example. Snapchat, a popular messaging tool which erases communications after they are seen, provides a possible blueprint. (There are ways to defeat Snapchat's self-destruct mechanism, but it provides at least a measure of security.)

"Though it may sound counterintuitive, affirming teens' right to sext helps protect them from privacy violations," Hasinoff argues. "The problem with viewing sexting as simply deviant and criminal for everyone involved is that it makes the malicious distribution of private images seem like a normal and inevitable part of sexting."

Yes, sexting can be bad and exploitive. Girls (and for that matter boys) can be pressured for nude images; kids (and for that matter adults) may make bad decisions about intimacy and trust. But sexting can also be fun, rewarding, and safe. Either way, criminalizing it doesn't protect young people; it makes them more likely to come to harm. You can't protect teens from sexual exploitation until you acknowledge that they have the right to make some sexual choices.