If a School Cop Threatens Your 13-Year-Old with Child Porn Charges for Sexting, Get a Lawyer
Families should never consent to have school resource officers search kids' phones.
Teen sexting stories are filled with kids who had no clue they were breaking the law when they swapped inappropriate photos of their own bodies—and with parents who didn't realize they couldn't trust the school or the cops to be reasonable. Carl was determined not to be one of those parents.
Last November, Carl received a call from Ms. Martin, an assistant principal at the middle school attended by his two sons, ages 13 and 12. Martin said the older son, Tommy, had shared a sexually inappropriate Snapchat image with some other students at the school. (I'm using pseudonyms for the people in this story and have not contacted the school, out of concern that Carl's family could face retaliation for coming forward.)
Several days later, after hiring a lawyer, Carl spoke with Martin again. He told her, in no uncertain terms, "I've instructed both of my boys that they are not to answer any more questions from the administration or the police at school in regards to this matter without parental or legal representation."
The statement caught the assistant principal off guard.
"She started stuttering and stammering a little bit about how she wasn't a part of the police and that they didn't need to speak to attorneys," Carl told me. "That that's not their job, and this or that or the other thing."
Carl was wise to ignore this assertion. The assistant principal isn't a cop, but the school—a public institution in the Midwest—did indeed employ a school resource officer: a law enforcement agent who works in the school but retains the powers of a typical cop. And in fact, Officer Jordan had warned Carl that his son might have committed felony distribution of child pornography. (Because of Carl's concerns about retaliation, I did not speak with anyone at the school. But Carl shared documentation with me in order to confirm his story, including emails between him and his lawyer on the days in question.)
"How can you call these kids in and get them to implicate themselves and each other?" Carl told me. "We felt like basically the officer and the assistant principal are using their positions of power over the kids."
On the day Carl and his wife first learned their eighth-grade son Tommy had been questioned by the school's administration, they sat down with their son and asked him whether it was true that he had an inappropriate picture of a female classmate on his phone. Tommy denied having the image, and let them look at his Snapchat folder to prove it wasn't there.
The next day, Tommy came home from school distraught. Eventually, he admitted to his parents that he had been dishonest with them: He did have the picture, and several others like it, but had panicked and wiped his phone as word began to spread at school that some boys were circulating naughty pictures of girls. The matter had reached the school's attention after a parent of one of Tommy's friends had discovered a picture of the girl on his friend's phone and reported it to the administration.
Tommy got the picture from a boy who attends a different middle school; this kid, according to Carl, was sent the picture either by the girl herself or by her vengeful friend. But Tommy's middle school identified Tommy as a distributor, since several boys had received the picture from him. Carl claims that Tommy hadn't actually sent it. Tommy's younger brother, a sixth grader, had unlocked Tommy's phone while he was out of the room, granting the friends access to the image so they could send it to themselves. (As an older brother whose younger brother would have taken any opportunity to trade my privacy for social approval while we were growing up, I sympathize with Tommy's situation.)
Tommy was no longer in possession of his phone: Officer Jordan had confiscated it, along with 30 others.
"One of my first questions when I found out that they'd taken his phone was, is that even legal?" Carl told me. "Are they even allowed to do that?"
It is legal for school officials to confiscate students' phones if they are disrupting class or violating school policy. But school officials often need to have kids or parents sign waivers in order to let police search the phones, and they can't compel students to unlock the devices.
Many people don't understand that school officials aren't necessarily doing what's best for a kid, and that they are likely to bring in law enforcement if they suspect a crime has been committed. And sharing sexually charged images of minors—even consensually, even if the people doing the sharing are themselves minors—is a felony.
Placed in such situations, students and parents often think the best thing to do is cooperate. Austin Yabandith, the 17-year-old whose ordeal I profiled at length for Reason, agreed to let an school resource officer access his phone because the officer said he would delete the inappropriate pictures and that would be that.
"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 told me.
But police officers don't have to tell the truth, and Austin was later charged with sexual exploitation, sexual assault, and possession of child pornography—all for having a consensually exchanged image of his 15-year-old girlfriend.
Tommy could have faced similar charges. The day after learning that the school had taken Tommy's phone, Carl went to the school to meet with Officer Jordan, who confirmed that the situation was serious.
"Basically what I got out of the conversation right away was he says, 'Your son has committed felony child pornography, and you can either sign this consent form so that I can get in his phone, or I'll get a warrant,'" Carl told me.
The officer said that he thought charges were unlikely in this case but would make no promises. Carl walked out of the meeting and hired an attorney.
In subsequent conversations, Ms. Martin, the assistant principal, maintained that Carl had escalated matters unnecessarily. Officer Jordan called Carl to ask him to sign the consent form to search the phone; Carl replied that he would only sign it if his attorney recommended such action.
Within a few days, Carl's attorney learned that no one would be facing charges and that the students whose phones were taken would be getting them back. The attorney also made a revelatory discovery—the prosecutor told him that the picture in question wasn't explicit enough to fall into the category of child pornography. The girl was topless, but she was covering her breasts with her hands.
That detail is reminiscent of a teen sexting case involving a 14-year-old girl from Iowa, who was accused by a juvenile court of sexually exploiting a minor via inappropriate photos. The minor was the girl herself, and the photos were, in her parents' words, "less 'racy' than photographs they see in fashion magazines and on television every day."
It has now been several months since Carl learned there would be no charges. Neither the police nor the school has taken any punitive action against Tommy, so the matter seems resolved. Carl eventually told his coworkers about the ordeal; an intern in his office said he knew a young man who had been arrested for sexting. The young man was Austin, and Carl got in touch with me after reading my article about the case.
Everything seems to have worked out fine for Tommy except for one thing: Officer Jordan kept his phone, for reasons that remain a mystery.
"We don't care about the phone," Carl told me, noting that he had already purchased his son a new phone for Christmas. "Part of me wonders if they feel like, as long as the phone is not out there, even if the picture is on the phone, it's not getting shared."
I told Carl that if I were him, I'd feel more comfortable about the phone if I could watch Officer Jordan destroy it with a power drill.
Reason is sponsoring a panel at South By Southwest 2018 on the wrongful criminalization of teen sexting. The event is on March 8 in Austin, Texas. It will feature the journalist Emily Yoffe, the sociologist Emily Horowitz, Austin's mother Amy Lawrence, and me.