When Sex Is Not a Crime, Why Should Sexting Be?

Rather than create new misdemeanors, states should take a page from statutory rape laws.



In a New York Times op-ed piece published today, Amy Adele Hasinoff, a professor of communication at the University of Colorado, Denver, amplifies the concern that reforms aimed at making the legal treatment of teenaged sexters less punitive could have the opposite effect. "Once they have the option of lesser penalties," Hasinoff writes, "prosecutors are more likely to press charges—not only against teenagers who distribute private images without permission, but also against those who sext consensually." In fact, more prosecution is the avowed goal of some legislators who sponsor sexting-specific bills.

Hasinoff, one of the experts I quoted in my post about Colorado's proposed reforms last week, agrees that it makes no sense to treat consensual nude images that teenagers share with each other as a kind of child pornography, which exposes them to the threat of felony charges and registration as sex offenders. "Though most prosecutors do not use these laws against consensual teenage sexters, some do," she says. "The University of New Hampshire's Crimes Against Children Research Center estimates that 7 percent of people arrested on suspicion of child pornography production in 2009 were teenagers who shared images with peers consensually." Robby Soave reports recent examples here, here, and here.

While about two dozen states have passed laws addressing this issue, the typical approach is to create a new misdemeanor offense for minors whose sexting violates the letter of bans on child pornography without victimizing anyone. But if there is no real victim, why treat this behavior as a crime at all? Hasinoff, author of Sexting Panic: Rethinking Criminalization, Privacy, and Consent (University of Illinois Press), argues that it would be better to emulate statutory rape laws by "exempting teenagers who are close in age and who consensually create, share or receive sexual images." In other words, if it is legal for two teenagers to have sex with each other, it should be legal for them to exchange nude selfies.

Hasinoff cites New Mexico's recent reform, which makes child pornography charges inapplicable to a teenager who receives a picture from a peer, as a step in the right direction, although "teenagers who create or share sexual images can still be convicted of child pornography production or distribution." New York, another state Hasinoff mentions, offers an alternative to criminal charges in cases involving images exchanged between people 20 or younger whose ages are no more than five years apart. In such cases, the "offenders" can avoid criminal charges by undergoing an eight-hour "education reform program" that covers the dangers of sexting and cyberbullying. But as in most states, felony charges are still allowed.

"Like any sexual act," Hasinoff writes, "consensual sexting is somewhat risky and requires trust, but it is not inherently harmful as long as partners respect each other's privacy and are attentive to consent. Studies have found that around 3 percent of Americans report that someone has distributed private sexual images without their permission, and around 10 percent of sexters report negative consequences. The risk of distribution is significantly higher among those who were coerced into sexting." Hasinoff argues that an indiscriminately punitive approach to sexting discourages true victims from coming forward because "teenagers know that if they report the incident they may be punished at school and possibly charged with the same offense as the perpetrator."