Sexting

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."

NEXT: The Supreme Court Says Your Filthy Trademark Is Protected by the First Amendment

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. in a dissent joined by Justice Melissa Hart

    I loved her in Sabrina the Teenage Witch.

  2. Government, law, and mission creep. Film at 11.

  3. The law is an ass.

    1. The law is

        A

      ass.
      Seriously.
      If you’re going to quote Dickens via Mr. Bumble, get it right!

      1. Not only is the law a/an ass, but it is intentionally designed that way. No core mission to find the objective truth and appropriate action, but lots of arcane posturing and procedures and ceremonial pretension.

        If science worked the way our legal system does, the world would still be flat and most of us would die in childhood.

        1. If science worked the way our legal system does, the world would still be flat and most of us would die in childhoodfall off it.

          1. Well….I think it’s fair to say it would be turtles, all the way down.

  4. Phew. Luckily the state dodged the judicial activism bullet of ruling against unconstitutionally vague law.

  5. We get this while TEDx is giving speeches about being accepting of pedophiles. When do we reach peak sexting?

    1. Link me, brother

      1. https://m.youtube.com/watch?v=Wrv_XQ92YQM

        Well see what my phone does with that link.

    2. That NAMBLA guy–the one who wrecked The Intellectual Activist back in the 80s–ought to be called in as an expert witness.

  6. I want to hear more about why he was being investigated for an unrelated sexual assault charge before I lose sleep over this one…

    1. With that as your opening position, nobody is going to care what you think.

    2. Tragically, FFA members are sometimes caught practicing animal husbandry. This may have been one of those cases.

    3. He wasn’t just investigated.
      He was tried and acquitted.
      How does his lack of guilt better inform you?

  7. T.B. met the two girls at a Future Farmers of America conference

    You don’t have to be lonely…oh, wait, yes you do, because you’re on the sex offender registry.

    1. Sexoffenderregistry.com might already have been taken, but I’m too afraid to run the whois.

  8. Waitaminute…shouldn’t the girls have received at least 7/10 the punishment he received? Sounds like a punishment gap to me.

    1. The girls should have received a GREATER punishment. They sent more pictures.
      This whole sexting/nudes of minors things is overblown.
      They even bagged a reporter years back. He was trying to document the traffic in kiddie porn, so posed as a trafficker. He had about a dozen pix on his computer when he was busted (if memory serves) most of which had been deleted. Of course, one of the sex pix traders in the chat room was a Federale.
      The judge in the case ruled he could not even tell the jury WHY he had the pix on his computer, which is the correct legal ruling, but horse shit. The crime is a “strict liability” crime – which means, if someone sends you an encrypted file which you can’t read, and you trash it, and later on the Feds find the file and figure out how to open it, and insides are a dozen photos of kiddie porn – you’re guilty – and that’s all there is to it. Doesn’t even matter if someone hacks your machine and puts the photos on your computer. YOU ARE GUILTY because you’re “in possession”.
      I most sincerely hope that some day we get someone who sends a dozen kiddie porn photos in a file to every federal legislator and judge, the files are then revealed to be kiddie porn – and in the possession of each and every one of them – and their entire staffs.
      Seem to recall the penalty can be up to $250K per photo and 5 years in prison (but I could be wrong).

      1. DON’T TELL THE RUSSIANS!!!!

        1. Hey! Vladi! Have I got a proposition for you!

          (I hope Russian is planting kiddie porn on judge’s computers ……)

    2. As the boys attorney stated, “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.”

  9. Sex registries are unconstitutional.

    No state constitution nor does the US Constitution provide state powers to force people not under state custody to register, give any information, or not live in certain areas (school zones).

  10. Didn’t former President Howard Taft issue some sort of warning about the dangers of selective enforcement? I believe this would have been about the time the Bryanist and Methodist White Terror were putching ratification of the 18th Amendment. Then again, conscription was declared a non-violation of the 13th, and a jury freed murder defendants who publicly killed a lone dissenter at a pro-war march in that same era.

  11. The only reason laws against child pornography have survived freedom-of-speech challenges, while those against general pornography have not (except when obscene), has been victimization of the models. And how can victimization include selfies? The law has become unmoored from the reason for it.

    1. ^ This!

  12. Cmon

    Texts between teens is not pornography. It may be dumb and you should not do it. You ever met a teen before ?

    Pornography is what is up on pornX today and it is legal.

    This kiddo does not deserve this.

  13. “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,”

    I’m sure NOW will be protesting this shortly.

    What really strikes me is that the 15 year old boy gets punished for sending nudies to a 17 year old girl, but the 17 year old girl doesn’t get punished for sending nudies to a 15 year old boy.

    They didn’t engage in “essentially the same behavior”, the 17 year old girl engaged in *worse* behavior.

  14. He was discriminated on based on his sex, he should sue! It’s the in thing to sue about such things nowadays isn’t it? Because sexism is bad or something?

  15. The people who propose and enforce these laws should have to wear something like a “Kick Me” sign. Here’s a suggestion:

    “I create sex offenders for a living.”

  16. […] Six months later, in March 2013, T.B. was arrested for unrelated sexual assault charges. He was later acquitted by a jury. During the course of the investigation, police found the nude photos of the two women on T.B.’s cell phone and charged him with two counts of sexually exploiting a child, according to Reason’s Jacob Sullum. […]

  17. Well that’s a question. If two 16-year old have consensual sex, have they both committed statutory rape?

    1. Most all states have what’s called a “Romeo and Juliet” clause, which exempts boys and girls within a certain age difference. However, federal child pornography law explicitly states that age of consent does not matter. The photographer does not matter. Recipient does not matter (with the sole exception if you report it to the police within 48 hours of receipt).

      No congressman will attempt to touch this law, as being seen to be soft on child pornography is a blank check for your political opposition.

      1. What these laws are saying is, “Don’t exchange stroke photos. That’s illegal. Just go ahead and fuck already.”

  18. Whatever happened to judges refusing to give extraordinarily harsh sentences “In the interest of Justice”. This is so profoundly absurd that I have to question the sanity and moral turpitude of everyone involved. What prosecutor would bring this case? What judge would rule on it? Especially now that the legislature has reduced the charge to less than a traffic tickets. This is a gross injustice.

  19. So why is it that the 2 teen girls aren’t on the sexual offender registration list?

  20. […] Six months later, in March 2013, T.B. was arrested for unrelated sexual assault charges. He was later acquitted by a jury. During the course of the investigation, police found the nude photos of the two women on T.B.’s cell phone and charged him with two counts of sexually exploiting a child, according to Reason’s Jacob Sullum. […]

  21. I saw the title and immediately knew the girls wouldn’t face any charges. Gotta love that male privilege.

    So literally no one made an 8th amendment argument? Disportionality has been used before… and I think this is clearly disproportionate to a behavior at least half of teenagers engage in, ya? All the justices seemed to agree it was unjust.

    1. I’m wondering how much that “unrelated sexual assault charge” has to do with the way he is being treated. Could this be something similar to what many people thought OJ’s imprisonment in Nevada was, i.e. “we couldn’t convict him of his real crime, so let’s throw the book at him for something else”? That the girls involved have not been charged (while some in other such cases have been) suggests it just might be.

  22. […] After a bench trial, the judge ruled that the conduct had amounted to sexual exploitation of a child and sentenced the boy to spend two years on probation as a juvenile sex offender and register as a sex offender for at least 20 years, according to Reason magazine. […]

  23. […] Un adolescente de 15 años que intercambió mensajes sexuales y fotografías eróticas con dos chicas de 15 y 17 años fue considerado culpable de explotación sexual de menores por la Corte Suprema de Colorado (EE.UU.). Como resultado, tendrá que figurar 20 años en el registro de delincuentes sexuales, informó Reason. […]

  24. […] Oink oink, but he was on the wrong side of an imaginary line, so we HAVE TO destroy his life!  SHAZ…! […]

Please to post comments

Comments are closed.