Romeo and Juliet and Sexting: 17-Year-Old Faces Child Porn, Assault Charges for Consensual Sex with Girlfriend
'They said that all they were going to do was delete the photos from the phone, so I blindly signed a paper allowing them to access it.'
For an update, scroll to the bottom.*
"After being arrested, I was suicidal and hopeless," Austin Yabandith, a 17-year-old from Superior, Wisconsin, recalls. "As of right now, I am just hoping for the best and preparing for the worst."
The "worst" would be pretty bad. After discovering indecent photos of Austin's 15-year-old girlfriend on his cell phone—as well as a video of the couple having sex—authorities charged him with sexual assault of a child, sexual exploitation, and possession of child pornography. The sexual assault charge is considered a Class C felony, and carries a maximum (though unlikely) sentence of 40 years in prison.
One might argue that a sexual predator deserves such a fate. But Austin isn't a sexual predator. He didn't assault anyone, or send child porn. By one important measure, he is a child himself: the age of consent in Wisconsin is 18, which means Austin is technically under-age, just like the girlfriend he is accused of exploiting.
But Wisconsin's sex offender laws contain a curious quirk: 17-year-olds can be charged as adults—even though the law considers them to be children and incapable of consenting to sex. It's an absurd contradiction that calls to mind the prosecution of North Carolina 17-year-old Cormega Copening, who faced third-degree sexual exploitation charges for taking inappropriate photos of a minor. The teen was charged as an adult, even though he was one of the minors in question—some of the pictures were ones Copening had taken of himself.
Austin's situation is worse. Much worse.
That's because Wisconsin's laws are actually more punitive than North Carolina's. In many U.S. jurisdictions, the law permits consensual relationships with underage teens if the perpetrator is no more than four years older than the other person: this category of exceptions is typically called the "Romeo and Juliet" law—a foreboding tribute to the most well-known underage couple in English literature.
Wisconsin is one of a handful of states with no Romeo and Juliet exception.
Austin and his girlfriend "Kim" (not her real name*) dated for more than a year. Though two years apart in age, they attended the same high school. Kim's parents were supportive of their relationship, according to Austin. They even gave him condoms and put her on birth control, he says.
"I figured that since we had consent from her parents and she wanted it as well, that we could have sex," says Austin.
That was a mistake, as far as the law is concerned—even though it's perfectly normal for teens to form committed relationships with other teens, fall in love, and engage in sex.
Another mistake was living in Wisconsin—where laws prohibiting teen relationships are particularly spiteful.
But Austin's biggest mistake, arguably, was trusting Tom Johnson, the police liaison stationed at his high school, when the officer asked to take a look at his cell phone. Austin cooperated: he didn't think he had anything to hide, or any reason to worry that he could be in trouble with the law.
He was wrong.
Before the police turned his life upside down, Austin was living with his mother and brother in a two-bedroom duplex in Superior, Wisconsin. Austin's father isn't in the picture anymore—he lives in Laos and hasn't seen the boys in years, according to Austin's mother, Amy.
Amy married again after Austin's father, but that marriage ended in divorce as well. She now works as a personal caregiver. They're a low-income family, she says.
Austin is your average teenager. He likes hanging out with his friends and playing sports—basketball most of all, though he says he's better at football.
"He's a really good kid," his mother tells me. "He just fell for a girl."
Said girl is Kim. After meeting at a beach party, they exchanged contact information and then started skyping each other all the time. They attended Superior High School together—two grades apart—and dated for more than a year.
"We'd talk all night," Austin recalls. "Help each other with homework."
They were also having sex—something their parents were aware of—and occasionally exchanging sexy text messages. Austin received dozens of texts from Kim. Like a responsible boyfriend, he kept them to himself.
A year into their relationship, in the spring of 2016, Austin, then a junior, discovered that Kim, a freshman, had sexted with someone else—a boy in her own grade named Thomas. Kim used snapchat to send the photos to Thomas, meaning that they would normally disappear 10 seconds after being viewed. But Thomas used his phone to take screenshots of the graphic pictures of Kim. He then shared the photos with several of his male friends, creating a sexting scandal at the school.
Austin was heartbroken over Kim's betrayal.
"It was a big deal for me and my family," says Austin.
Kim's parents first found out about the situation from Austin's mother, who called them to let them know. On May 6, Kim's mother notified Super High School's assistant principal, Bill Punyko, that several boys were circulating sexual pictures of Kim. Punyko informed Tom Johnson, the school's police officer and liaison to the Superior police department.
Superior High School is one of the roughly 40 percent of American public high schools with a dedicated school resource officer (SRO): a cop assigned to patrol the school. In theory, the cops are there to maintain order and prevent violence. But in practice, cops can have a detrimental effect on the disciplinary policies of schools, because their mere presence tends to elevate disputes between students into criminal issues.
Kim's sexting scandal is a case in point. Officer Johnson initiated his investigation on May 6. By the time it had concluded—two and a half months later—he would recommend that six teenagers be arrested for possession of child pornography, including Kim herself.
Five of the teens haven't been prosecuted. The sixth is Austin.
Officer Johnson began with Thomas. The teenager was told that he was not under arrest and could return to class if he wished, according to the police report. Thomas told the officer that he knew Kim and Austin were dating, but liked her anyway. He said he convinced Kim to send him her nudes after winning a game they were playing: After she complied, he reciprocated. He admitted that he had saved the pictures—despite Kim using snapchat to avoid this exact possibility—and later shared them with "a couple people," including Austin, who had demanded to see them to verify that Kim had indeed cheated on him.
Thomas also told Johnson he was afraid that Austin was going to beat him up.
At the officer's suggestion, Thomas signed a waiver allowing him to search the teen's phone.
Johnson then interviewed Austin, who was "angry that his girlfriend would send nude photos of herself to [Thomas]," according to the police report. Johnson warned Austin not to start a fight with Thomas. Then he asked to take a look at Austin's phone.
Austin agreed—a decision he regrets to this day.
"They said that all they were going to do was delete the photos from the phone so I blindly signed a paper allowing them to access it," Austin recalls.
I sent an email to Johnson, and left a voicemail message for him at the school. He did not respond to requests for comment.
After speaking with Kim and Thomas again, Johnson was able to obtain the names of three boys who had received Kim's photos from Thomas: Hugo, Julius, and Arnold. Johnson then interviewed Hugo, who confirmed that he had received Kim's photos. Johnson obtained Hugo's father's permission to search his phone.
Johnson did not receive Thomas's mother's permission to search his phone. But this wasn't enough to save Thomas. As Johnson noted in the police report, "the phone will be placed into evidence until a search warrant can be obtained."
Next up was Julius. During his interview, Julius admitted to receiving Kim's pictures from Thomas. He said he never sent them to anyone else, and allowed his phone to be searched. His parents consented to the search as well, according to the police report.
After Julius came Arnold, who also admitted to receiving the pictures of Kim. Like Julius, he agreed to let Johnson search his phone.
Last up was Kim herself. Kim expressed dismay and frustration that Thomas had shared her pictures with so many people. And she was worried about Austin: specifically, that he was now in trouble, even though he wasn't the one who had wronged her. Kim mentioned to Johnson that it wasn't just sexting—Kim and Austin were sleeping together.
"I thanked [Kim] for the information and she left my office," Johnson noted in his report.
Kim's betrayal of Austin did not dampen his feelings for her.
"I still love and cared for her," he says. "I wasn't mad. I was hurt."
From his perspective, Kim needed him more than ever—she was depressed and suicidal following the sharing of her sexts.
I reached out to Kim, who agreed to talk to me about the sexting situation and her relationship with Austin. Before she could answer any of my questions, her father called me: he threatened to contact the police and forbade me to have any further contact with her. Before I could question him, he hung up the phone.
Roughly two weeks after Johnson conducted his interviews, Austin and Kim decided to skip school together, and spent the morning in Austin's makeshift room in the basement of the duplex where he and his family live. The landlord hadn't given permission for anyone to occupy the basement, however, and the couple was discovered when someone went downstairs to check a water meter. The police were called.
What happened next is up for debate. Austin believes the police convinced Kim's parents to file a restraining order against him: the report, on the other hand, makes it sound as if Kim's parents were eager to find a way to prevent Austin from interacting with their daughter. The police report insists that Kim's mother referenced the teens' sexual relationship disapprovingly. Kim's mother "wanted this documented on a police report, for possible charges against Austin."
The restraining order took Austin's mother Amy by surprise.
"I always thought they liked him," she says.
Austin was prohibited from having further contact with Kim, though police frequently stopped at his house to see if she was there: she had run away from home, Austin later found out.
"Once the restraining order came along, I was lost and lonely," says Austin. "And worst of all, I was scared for her life. The more time that passed without us talking, the more I heard about her getting into deeper trouble by running away."
The hammer of justice fell on July 15, after a forensics unit finished examining all the phones belonging to the various teenagers. According to Johnson's report, the evidence was clear: all of them were guilty of possessing child pornography.
Since Thomas was under 17 years of age, he was referred to something called Juvenile Intake—the equivalent of being arrested for minors. According to a spokesperson for the Superior Police Department, the charges against Thomas are listed as "inactive," which means that prosecutors have not opted to charge him with a crime.
Hugo, also a minor, was referred to Juvenile Intake. He isn't being prosecuted.
The same goes for Julius. The same goes for Arnold.
Even Kim—the supposed victim in all this—was referred to Juvenile Intake. But like the others, she hasn't been prosecuted.
Austin—the only boy involved in the sexting scandal who didn't betray Kim's privacy—wasn't so lucky.
"I will be attempting to contact and arrest Austin Yabandith as soon as possible for his role," Johnson wrote in the report. "Yabandith is an adult."
Three days later, Johnson arrested Austin at his home. The teen answered the door wearing nothing but a pair of shorts. Johnson allowed him to put on some shoes, grab a shirt, and say goodbye to his mother before carting him off to jail.
Damned Saint, Honorable Villain
For now, Austin is out on bail, awaiting his next court date. He is charged with sexual exploitation, sexual assault of a child under the age of 16, and possession of child pornography. He waived a preliminary hearing and is now waiting for his arraignment—a formal reading of the charges against him—on October 18.
He is being represented by the public defender assigned to him. His family can't afford better legal representation.
"I'm scared," Austin tells me. "My life could be completely ruined by this."
His would not be the first. The criminal justice system's love affair with overzealously prosecuting sex crimes has imposed life-derailing sanctions on countless teens. Laws that were designed to punish pedophiles—adults who take advantage of kids decades younger—are being haphazardly deployed against the kids themselves. Consider Karlo Ponzanelli, a 17-year-old who was sentenced to six months in jail, probation, and 10 years on the sex offender registry, for having sex with an underage girl. Or Zach Anderson, a 19-year-old who was sentenced to 25 years on the sex offender registry for having sex with a 14-year-old who had pretended to be 17. Or Cormega Copening. Or the Manassas-area 17-year-old who was arrested for sexting with his 15-year-old girlfriend. In that case, officers working for a task force that focused on crimes against children obtained a warrant to give him an erection and photograph it. The officer in charge of the task force, David Abbott, later committed suicide before he could be arrested. The authorities suspect he was actually a sex predator.
Abbott is an extreme example of law enforcement's disturbing role in these cases. Most cops who investigate sexting probably have good intentions. But the result is the same: adults rifling through graphic photos of underage teenagers in order to punish the teenagers for doing this exact thing.
The difference is critical. It's wrong for a middle-aged person to view a child as a sexual being. But it's not wrong for teenagers of relatively similar ages to view each other that way. On the contrary: it's just about the most natural impulse a teenager possesses. Sexting is nothing more than a modern way for teenagers to act on these impulses—there isn't anything uniquely sinister or dangerous about it. Elizabeth Englander, a psychologist at Bridgewater State University, writes that the practice is becoming "a normal part of teens' sexual development," and shouldn't be demonized. The practice is so widespread as to be unpreventable, anyway: more than half of college undergraduates engaged in sexting when they were minors.
Schools have a legitimate interest in preventing kids from sharing each other's pictures with the entire student body. But they can address the so-called scourge of sexting the same way they address other behavioral problems: confiscate phones, assign detention, and contact parents. They can make it clear that sexting at school is against the rules. What they shouldn't do is call the cops.
Of course, schools have little choice of whether to involve the criminal justice system when a police officer is already roaming the halls.
"Things were taken way too far before we had a chance to fix the situation ourselves," says Austin.
For what it's worth, Austin doesn't blame his current situation on Kim. "People make mistakes," he says.
If only the criminal justice system had the same attitude toward teen relationships.
*Note: I changed the names of all the teenagers mentioned in this article, with the exception of Austin. His name had already been divulged by a previous news article in the Superior Telegram.
*Updated on September 16 ay 3:00 p.m.: Austin's mother is trying to raise money to help pay for his legal expenses (something several commenters helpfully suggested). Go here to donate.