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Ohio Republicans Move to Ban Sexting Between Teens

The bill is being pitched as a way to help teens avoid harsh child-porn laws.

@RepBrianHill/Twitter@RepBrianHill/TwitterOhio state lawmakers have proposed a bill that would ban sexting between teenagers, potentially turning thousands of ordinary young Ohioans into sex offenders. Its sponsors are pitching this as a step against overcriminalization, since the state would no longer have to prosecute minors—or anyone ages 18 to 20—with possession of child porn when they consensually exchange explicit pics with their peers.

There is some weight to their argument, topsy turvy as it is. Ohio authorities are already bringing charges against young people for sexting with one another, and the only applicable charge is child pornography. The same goes for 18- to 20-year-olds sexting with those slightly younger than them.

The bill "is drafted to be sensitive to the age differences of a couple that may have met in high school, where a 17-year-old could conceivably be in a relationship with a 19-year-old," Gretchen Klaber, legislative aide to Rep. Brian Hill (R–97th District), tells me. Hill is co-sponsoring the bill (H.B. 355) with Rep. Jeffrey Rezabek (R–43rd District). It was inspired by a case in Hill's district in which a young man killed himself after being arrested for sexting.

"The sponsors of the bill hope to give young people involved in situations like this a second chance with a diversion program, rather than having them permanently labeled as felons and sex offenders," Klaber says.

While this might indeed be a step in the right direction, why criminalize sexting between a 17- and a 19-year-old at all? And why explicitly create a crime of sexting between minors of the same age?

Legislators could instead amend state statute to exempt teens exchanging pics between themselves, and people a few years over 18 texting with those a few years younger, from laws that treat them as child-porn producers and consumers. Prosecutors could decline to bring these charges against sexting minors, and schools could decline to hand these cases over to cops.

Instead, this bill would create the new misdemeanor crime of "possession of sexually explicit digital material," banning the creation, production, distribution, presentation, transmission, posting, exchange, dissemination, or possession "through a telecommunications device any sexually explicit digital material" by anyone under age 21. (An exception would be made for married couples in possession of pictures of a spouse.) The law defines sexually explicitly material as "any photograph or other visual depiction of a minor who is in any condition of nudity or is involved in any sexual activity." Those found guilty of sexting would be sentenced to eight hours of community service, or whatever (greater or lesser) sentence a court sees fit.

In some cases, young people could avoid a criminal record by completing anti-sexting education. (The program would not apply to anyone previously convicted of sexting or of any other sex-related offense.) All courts would be required to devise and operate their own "sexting educational diversion program" and may allow people charged under the new sexting statute to do the program as an alternative to prosecution.

These programs would focus on not just "legal consequences of and penalties for sharing sexually explicit digital materials" but also the effect of sexting "on relationships, the possible loss of educational and employment opportunities, and the possibility of being barred or removed from school programs and extracurricular activities," and "how the unique characteristics of cyberspace and the internet, including searchability, replicability, and an infinite audience, can produce long-term and unforeseen consequences for sharing sexually explicit digital materials."

So sexting teenagers might not get labeled child pornographers, but they could still wind up with a criminal record or, at the very least, a lot of court dates and a bullshit DARE-style class on how sexting will ruin their lives.

Worse yet, the legislation doesn't actually change the state's child pornography laws. If it passes, prosecutors can still bring child porn charges against minors sharing photos of themselves or possessing pics of their peers. In fact, prosecutors could still use the threat of that charge to coerce kids to consent to searches, take plea deals on the lesser charge, and so on. The sexting offense would simply be an additional tool at authorities' disposal.

Beyond that, the bill would give Ohio police a new imperative and authority to investigate teen sexting. Right now, cops and prosecutors only tend to get involved in cases reported through parents and schools, where sexting has caused some sort of disruption. With a law explicitly banning teen sexts, police now have a mandate to proactively investigate sexting—and a new excuse to search the phones and threaten charges against young people they deem suspicious.

Jacob Sullum has explored this paradox here before:

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....

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.

(See also: "House Overwhelmingly Supports Bill Subjecting Teen Sexters to 15 Years in Federal Prison"; "Colorado Sexting Reforms Could Yield More Criminal Charges Against Teenagers.")

Here is the full text of the bill:

Photo Credit: JefferySRezabek/Facebook

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  • Fist of Etiquette||

    While this might indeed be a step in the right direction, why criminalize sexting between a 17- and a 19-year-old at all?

    Because soccer moms vote and law enforcement like viewing certain types of evidence?

  • Tony||

    Hardly anyone's thinking of the real victims, law enforcement officials who have to undergo the repeated trauma of viewing pictures of naked adolescents.

  • Half-Virtue, Half-Vice||

    Then hand them over to the FBI for more viewing, resting in the bunk, followed by mass distribution.

  • JudoPete||

    I don't see how there would be much difference in viewing a 17.5 year old vs. viewing an 18 year old on her birthday. Most nations wouldn't even pursue this lunacy.

  • sharmota4zeb||

    The 15 year old girl who had online relations with Anthony Weiner disrobed for him in a chat session. Feds could charge her with the production of child pornography. Few Americans would say that she should go to jail, but they won't advocate to change the laws that put her at risk.

  • Michael Ejercito||

    Do you really think anyone would go on record as supporting reducing the age of child pornography to 13?

  • LarryA||

    The only way to protect children from a draconian existing law is to pass a new law?

    I suppose when all you have is a hammer...

  • Francisco d'Anconia||

    Or, you could, you know, rewrite the original law so that it doesn't apply minors sexting?

    So, here is a serious question. If a minor cannot give consent and the guardian is responsible for the minor's actions, shouldn't the guardian be serving the time?

    The minor isn't given the responsibility to make decisions but is being held legally accountable for their actions. Seems it should either be responsible-accountable OR not responsible-not accountable.

  • Rhywun||

    Or, you could, you know, rewrite the original law so that it doesn't apply minors sexting?

    LOL. But teenage sexting is dirty and sinful, and must be punished in some manner.

  • Francisco d'Anconia||

    Especially in Ohio.

  • Wally||

    The lols will be epic. Picture some slime-bag pig trying to get a warrant to search a kids locked phone for wank pics

  • Fuck You - Cut Spending||

    A War On Sexting will be about as useful as changing the Age Of Consent to 45.

  • loveconstitution1789||

    I saw a sign that said anyone who looks less than 40 will be carded for alcohol.

    So, carding everyone now is too inconvenient and the law cannot be repealed because we have to protect people who look under 40.

  • loveconstitution1789||

    The age of consent kind of dictates that people under this age are not really responsible for their own actions. They cannot serve in the military, drink or smoke, or enter into contracts.

    This fixes the need to add new laws that criminalize any behavior for those under 18. Any serious crime, like murder, that an underage kid commits can then have a jury or judge decide if the kid can be held responsible for murder.

    The knee-jerk reaction to arrest and convict kids for minor stuff that were never crimes 30 years ago, is just insanity. Its costs kids much more than any benefit and parents have to pay out-the-ass for legal defense.

  • JudoPete||

    It seems that 12 yr olds can be prosecuted as adults for murder or robbery or property crimes but 17.999 year olds can be identified as victims for the purpose of a "child" pornography witch hunt

  • Half-Virtue, Half-Vice||

    Go fucking fuck yourselves you fascist fucking fucks.

  • Marcus Aurelius||

    Enjoy the decline! Use Snapchat :15!

  • JudoPete||

    Snapchat will eventually be charged with RICO for allowing underage users to sign up as adults and send pictures of their naughty bits to their boyfriends and girlfriends

  • John Thacker||

    If it actually changed the state's child pornography laws, then this could be worth it as at least incremental progress, even if not nearly enough. As it is it just makes things worse, as noted.

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