The Moral Panic Over Sexting

Laws meant to protect young people from sexual predators are instead being used to charge them as felons and put them on sex-offender registries for life.

Barry Huang / Reuters

It is extremely common for American teenagers to text one another naked photographs. Much less frequently, they get caught. If they’re discovered by a parent or teacher, they might get off with a stern lecture or a suspension from school. In an alarming number of cases, however, adult strangers get ahold of the images and proceed to systematically destroy the lives of the young people involved.

These destroyers are neither child pornographers nor pedophiles nor blackmailers. They are representatives of the criminal-justice system: police officers, prosecutors, and judges, often well-meaning, who prosecute kids as felonious sex-criminals, sometimes putting them on sex-offender registries for life.

The latest teenagers to face this irrational treatment live in Cumberland County, North Carolina. In October of last year, during an unrelated investigation, the Cumberland County Sheriff’s Department seized the cell phone of a 17-year-old boy. He had a 17-year-old girlfriend. “While our investigators went through the phone they saw there were photos of himself and another person on the phone," Sergeant Sean Swain told a local news outlet. “Simple possession having it on your cell phone is a charge itself, and if you should send it out to another person that is another charge.”

Now the boy faces five counts of “sexual exploitation of a minor” and the girl faces unspecified charges. Laws intended to protect kids are being used to prosecute them.

Had these images gone undiscovered they’d likely have done no harm at all to these young people. But thanks to the authorities, the boy has now had his photograph and name––which I am withholding but is easily found––published in the local newspaper and broadcast on television. He has been suspended from his high school football team. For months, he has had to deal with the intense anxiety stoked by facing charges of this sort and the prospect of life as a registered sex offender.

The girl has not been named in the local press. Nevertheless, her parents, teachers and classmates surely know her situation. She is probably humiliated and anxious about the legal trouble that she is in. What is Cumberland County Sheriff Earl R. Butler thinking? Why would District Attorney Willian West decline to exercise prosecutorial discretion in a case like this? In other jurisdictions, authorities have exercised discretion in sexting cases. If the young man “is too young to send pictures of his own body, is he not also too young to be made a social pariah?” Robby Soave asks. “The photos were private, and remained that way, until the cops got hold of them. If there’s public humiliation here, police intervention is the cause.” Unless they’ve inexplicably withheld details from the public, law enforcement’s case seems like a clear display of awful judgment.

These authorities would hardly be the first adults to behave irresponsibly in a similar situation. In Virginia, police secured a warrant to take a 17-year-old to the hospital and forcibly induce an erection in order to see if he sexted a photo of his penis.

Although press attention prevented the warrant from being executed, it remains a troubling episode. As Radley Balko wrote in the Washington Post at the time, “to register their contempt for child exploitation and sex crimes, lawmakers have defined sex offenses so broadly that a teen sending an explicit photo to a boyfriend or girlfriend can qualify. Typically, when critics point out that a new law could be used in ways lawmakers never intended, supporters point to prosecutorial discretion. They argue that it’s ridiculous, even insulting, to suggest that a prosecutor would twist a law to bring charges against someone in ways the law clearly never intended — or that a judge would allow it. That police, a prosecutor’s office and a judge all saw nothing wrong with forcibly inducing an erection in order to pursue charges against a 17-year-old kid puts the lie to that argument.”

In 2013, authorities in San Diego told the local press that they intended to file charges against 30 high school and middle school students involved in a “sexting ring.”

There have been dozens of senseless cases like this that have received media coverage; there are likely many more than have not. Even a state like Texas, which reformed its laws to avoid prosecuting teen “sexters” as felons, now treats it as a misdemeanor. The result in many states is that it’s perfectly legal for two 17-year-olds to engage daily in unprotected sex with one another, but criminal for them to have a relationship in which they abstain from sex—but trade naked photographs.

The necessary reform is obvious. As Sarah Thompson, then a law student, argued in Caveat, the digital publication of the University of Michigan Journal of Law Reform, children should be treated as a protected class under child-pornography laws. “Courts must consider the best interest of the child,” she wrote. “Scholars have found that youth arrests often signal serious problems to friends, families, neighbors, and bring with it a social stigma. Early criminal labeling can also have a negative psychological impact on young offenders’ views of themselves. Because adolescents are generally less aware of risks because they have less knowledge and experience than adults, and they typically discount the long-term consequences of their decisions, saddling them with court-sanctioned punishment and the stigma of prosecution is not in the best interest of the child.” This reform would not affect cases of adults exploiting children, though it should protect, say, an 18-year-old who is dating a 16-year-old. A good rule of thumb for the legal system might be that if it’s legal to have sex with an individual, it should be legal to consensually share explicit images with them.

Legislators, prosecutors, and police have a moral obligation to take steps toward sanity on this issue. The public has a part to play too. Juries should engage in nullification, refusing to convict in cases of teenagers consensually sharing naked photographs. And more jurisdictions should follow the example of the public in Wyoming County, Wyoming, where sensible voters ousted District Attorney George Skumanick Jr. from office in part due to his overzealous pursuit of teen “sexters.”

​If good sense prevails, we’ll look back on this time in American life as a strange amalgam of the era in which remote tribes thought cameras would steal their souls and the era in which Puritans punished their Hester Prynnes with overwrought persecution. But even if American attitudes on sex continue to liberalize, so that twenty years hence today’s status quo seems incomprehensible,  its victims will still be on sex-offender registries.

That is obscene.