Colorado Supreme Court Upholds a Decision That Forced a Teenager to Register As a Sex Offender for Swapping Nude Selfies

That result "may strike some as unfair," the court says, but it's what state law required at the time.

As of January 2018, teenagers in Colorado who use their cellphones to exchange nude selfies can no longer be prosecuted for "sexual exploitation of a child." But that change, which state legislators approved after recognizing the manifest injustice of treating adolescent sexting as equivalent to the production and distribution of child pornography, came five years too late for "T.B.," a 15-year-old boy who in 2012 and 2013 swapped erotic pictures with two girls, a 15-year-old and a 17-year-old. Last week the Colorado Supreme Court upheld T.B.'s adjudication as delinquent for sexually exploiting children, which requires him to register as a sex offender for at least 20 years.

The majority conceded that its decision "may strike some as unfair, especially given the recent changes in the law addressing juvenile sexting behavior." But T.B. violated the law that applied at the time, the court said, so he is out of luck.

Two dissenting justices argued that their colleagues had misread the statute and that the majority's interpretation raises troubling constitutional issues. "In my view," writes Justice Richard Gabriel in a dissent joined by Justice Melissa Hart, "the acts of sexting that occurred here do not constitute sexual exploitation of a child, and the juvenile should not be branded as a sex offender for having participated in such foolish—albeit not uncommon—acts."

T.B. met the two girls at a Future Farmers of America conference in September 2012 and stayed in touch with them afterward. He sent both of them a picture of his erect penis and asked them to reciprocate with photos of themselves. That fall the 17-year-old, identified as E.H., sent him three pictures, two of which showed her "curled up in a corner with her knees drawn up against her body" and her bare breasts visible. The third photo showed E.H. "standing near a bathroom shower, covering her breasts with one arm and revealing the profile of her nude body turned away at a slight angle." That spring the 15-year-old girl, identified as L.B., sent T.B. a self-portrait showing her reflection in a bedroom mirror; she was topless and had a towel around her waist.

In March 2013 police arrested T.B. on unrelated sexual assault charges. Although a jury acquitted him of those charges, the photos of E.H. and L.B. that police found on his cellphone led to a separate case in which T.B. was charged with two counts of sexually exploiting a child. After a bench trial, "the court adjudicated T.B. delinquent, sentenced him to concurrent, two-year terms of juvenile sex offender probation, and required him to register as a sex offender."

Under Colorado law, someone is guilty of sexually exploiting a child when he "causes, induces, entices, or permits" anyone younger than 18 to engage in "explicit sexual conduct for the making of any sexually exploitative material." The law's definition of "explicit sexual conduct" includes "erotic nudity," meaning the display of genitals or breasts "for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved." Five members of the Colorado Supreme Court agreed that the pictures on T.B.'s cellphone fit this description.

Justices Gabriel and Hart, by contrast, concluded that the phrase "one or more of the persons involved" should be understood to mean a person who either appears in the images or produces them. Since T.B. did neither, Gabriel writes, "the evidence against him was legally insufficient to support his adjudication for sexual exploitation of a child."

In Gabriel's view, the interpretation favored by the majority raises several constitutional concerns. Reading the statute "so broadly as to encompass a teenager's request that another teenager send a nude selfie strikes me as potentially implicating a juvenile's
right to free speech," he writes. "Similarly, I am concerned that the majority's reading of 'person involved' is so broad as to render it meaningless, thereby creating a constitutional vagueness problem."

Gabriel adds that the disparate treatment of T.B. and the girls, who faced no charges and will not have to register as sex offenders even though they engaged in essentially the same behavior, "raises the specter of selective enforcement of this statute based on gender," which may violate the 14th Amendment's guarantee of equal protection. Gabriel also notes that under current law, T.B.'s actions would be a civil infraction punishable by a $50 fine. "I am troubled by the fact that, based solely on timing, a person in the juvenile's position faces either an adjudication that will brand him as a sex offender (and require him to register as such) or simply a civil penalty," he writes. "To me, this vast difference in consequences presents serious equal protection concerns."