Stop Prosecuting Girls for Sexting

When Jane Doe was 14 years old, she sent a revealing selfie to a boy she liked. He kept a copy and, without Jane’s consent, shared it with other students at their Minnesota school. Jane had to endure humiliating sexual harassment — and now, prosecutors are charging her with felony distribution of child pornography, threatening to put her on a sex offender registry for being a victim of nonconsensual pornography.

Jane’s case isn’t as rare as you might think. Across the country, some police and prosecutors have brought criminal charges against teenagers for sending sexts, claiming it violates child pornography laws. In 2015, a teenage couple in North Carolina were arrested for sexting one another; the girlfriend was charged with “felony sex crimes against herself.” In Iowa, teens have even been convicted for it.

Sexting prosecutions are state-mandated slut shaming — and they come with serious consequences.

Production and possession of child pornography can carry a federal minimum sentence of 15 years. After prison, people convicted of sex offenses are placed on the sex-offender registry — making it nearly impossible to find a job, live in most areas, or go to college. Being on the sex offender registry will ruin a person’s life. That’s the sentence kids could face because some overzealous prosecutor objects to them sending a raunchy photo to their prom date.

Creating, owning, and distributing child pornography carries strict sentences because these laws are supposed to protect children from sexual exploitation. That’s why bans on child pornography are permitted under the First Amendment, while general bans on pornography are not: as the Supreme Court wrote in New York v. Ferber, producing child pornography materials requires harm to minors and that harm “is exacerbated by their circulation.”

But a high school student who sends a risqué photo to her partner isn’t harming anyone, much less committing a felony sex crime, and neither is the girlfriend who receives the photo. Nor are they victims of sexual exploitation; no one’s harmed by teens sending flirty photos to one another. Sexting is normal teenage behavior — according to one 2012 survey, nearly a third of 18-year-olds report sending nude pictures while in high school and 45% report receiving them.

Under the absurd theory advanced by Jane Doe’s prosecutor, these tens of thousands of teenagers are simultaneously perpetrators of sexual exploitation and the victims of their own acts of child pornography. Worse, they could go to prison for it.

At best, some states have “diversion” programs where teens are forced to take a class about the dangers of sexting, suffer restrictions on their use of electronics, and admit to guilt. But what exactly are teens supposed to admit guilt to? Sending nudes? Thinking about sex? Teens girls don’t need the police to punish them for — or protect them from — normal sexual expression.

Those programs may be better than the sex offender registry, but they still seek to punish young people who have fundamentally done nothing wrong. A sexting diversion program is nothing more than court-mandated slut-shaming where teens are told that their sexual expression is so wrong that the state is intervening to teach them a lesson. And for victims of nonconsensual pornography like Jane, I worry that a program requiring her to “admit guilt” sends the atrocious, taxpayer-funded message that she’s responsible for her own sexual harassment.

It’s the same logic that leads district attorneys to throw rape survivors in jail to force them to testify: prosecutors say they’re punishing women and girls for their own good, as though they knew better. As though it’s worse for a young woman to send a completely consensual risque photo to her boyfriend than to end up on the sex offender registry.

It’s past time for courts to step in — sending nudes shouldn’t turn teens into sex offenders. In a 2010 case, the Third Circuit upheld a restraining order against a Pennsylvania DA who threatened to prosecute three teens for sexting unless they agreed to a re-education program, finding the case implicated the Constitutional rights of the girls and their parents. More of this, please. And as for Jane, the ACLU of Minnesota is stepping in on her side.  

As #MeToo disrupts longstanding imbalances of workplace power, we’ve seen a chorus of misguided writers clutching their pearls over punishing people for mere flirting. If you’re worried about a sex panic, maybe you should worry less about flirting and more about the local prosecutor’s office turning teens who send nudes into sex offenders.

Image Credit: ACLU of Minnesota