When “Kids will be Kids” is a Felony

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Late last year, NBC News ran an article, A Teen Sexting Case Revealed How Judges Let Police Invade Children’s Privacy. The article is disturbing and vitally important for all organizations responsible for teenagers.

A (very) brief history

Sexting (the sending of sexually explicit messages or images by cell phone – Merriam-Webster) is prosecuted as a felony under child pornography laws. Child pornography is a felony (foot stomp – this is a bad thing) punishable by imprisonment and registration as a sex offender. Federal law specifically addressing child pornography dates from the Protection of Children Against Sexual Exploitation Act (PCAEA) of 1977 (there are too many state and local jurisdictional laws and ordnances to present here). The PCAEA was aimed at adults creating and distributing sexually explicit material involving “pre-pubescent minors.” Legislators did not consider the potential for the easy, and even casual, creation of such images because the pre-Internet technology of 1977 was simply not amenable to such casual use. This oversight was addressed in the Child Pornography Prevention Act of 1996 that was struck down in 2002 as being too broad and violating First Amendment rights. Subsequent federal action has focused on increasingly detailed sentencing guidelines.Drawing of a student on a cell phone

The introduction of the iPhone in early 2007 marked a tectonic shift in the ability of anyone to “create and distribute” any kind of imagery using the integrated camera and email applications. Any technology that can be used in unintended ways will be. It took teens a relatively short time to begin sexting. This created a serious can of legislation worms. The law was meant to address adults abusing minors – not teens being typical teens and doing things with little or no concern for the long-term consequences. The article referenced at the beginning of this post presents a case in which a 17-year-old male sent pictures of his genitals to his 15-year-old girl friend. That was, under the existing law, a felony, even though actual sexual intercourse between the two minors was, in that state, perfectly legal.

Organizational Preparedness

Organizations with responsibility for minors need to include the possibility (probably, the certainty) that some of their charges will engage in sexting while under their care. Twenty states have already enacted legislation addressing sexting by minors, but such behavior may be prosecuted as a felony in the remaining thirty states. In fact, a city in Colorado faced such a gut-wrenching situation when it was discovered that almost every high-school student had been engaged in actively sexting. How do you convict an entire student body of felony behavior?

Recognizing that minors are likely to engage in sexting, organizations need to develop and implement plans to both help prevent such behavior, respond appropriately to situations when they happen and to work with parents/guardians to help the participants deal with the consequences of their actions. These plans must be coordinated with local law enforcement organizations, with the judicial system and with parents. With these plans in place, organizational leadership needs to exercise those plans – preferably on an unplanned basis since such crises are seldom polite enough to schedule their appearance at convenient times.

Teen sexting is a serious issue – one that can affect a young person’s entire life. It is not something to be ignored or treated in a “kids will be kids” manner.

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