The Colorado Legislature has once again turned its attention to the touchy subject of sexting, the practice of sending nude or sexually suggestive photos of oneself via text messages. The problem is that while few adults would approve of the practice, fewer still think a teenager should be branded with child pornography charges for something that is more reflective of youthful foolishness than criminal intent.
Perhaps what is needed is not so much a sexting exception or a different penalty, but a different approach. That could be based, not on child pornography laws but on existing laws governing consent – and a little bit of adult restraint.
Under current law an overzealous prosecutor could bring child pornography charges against a minor for sexting, potentially leaving the accused with a felony record and the lifelong requirement to register as a sex offender. (Although, it is a little unclear whether sender, recipient or both could be charged.) Colorado lawmakers have recognized that child pornography laws were never meant to cover such a situation.
This all came to the Legislature’s attention last year when more than 100 students at a high school in Cañon City were found to have explicit images of other teens. Dozens of students were suspended, but Fremont County prosecutors wisely chose not to charge anyone.
Recognizing the potential for misapplied child pornography charges, four state lawmakers – one Democrat and one Republican in each chamber – have sponsored a bill that would create the crime of misuse of electronic images by a juvenile. It would be a misdemeanor punishable by up to a year in jail, and the sentence may be reduced further.
Teens and researchers say sexting is so common that even a misdemeanor is too much, while several prosecutors have spoken out in favor of the bill. As one said of minors, “We don’t let them own guns. We don’t let them rent cars. We don’t even let them vote because we don’t trust their judgment.”
Except that we do let them shoot, we do let them drive – and we do let them have sex.
There are a number of factors that determine whether someone can consent to sex, age being one. According to FindLaw.com in Colorado the age of consent is 17. So if, for example, a 40-year-old has sex with someone younger than that, in the eyes of the law it is sexual assault. But, as in many other states, there is a “Romeo and Juliet” exception if the participants are close in age. So, if two 15-year-olds are having consensual sex, the law essentially throws up its hands.
Sexting can be viewed similarly. End the potential for child porn charges in real cases of sharing sexts and look to existing law in cases of actual harm. Pressuring someone for a sext could be harassment. Sending someone an unwelcome selfie could be too, or perhaps indecent exposure. And there has to be some legal remedy for sharing a sext with the whole school. Above all, parents and all institutions dealing with minors should impress upon kids the fact that anything out there electronically has the potential to exist forever and resurface at an inconvenient time.
At the same time, though, perhaps adults need to take a deep breath. We scared our parents too.
