The Des Moines Register reported late last month that a county prosecutor is threatening to charge a teenage girl with sexual exploitation of a minor for sending a sexually suggestive picture of herself to another student. The 14-year-old girl, called Nancy Doe in a lawsuit aimed at heading off the charges, appears in underwear and a sports bra in one photo and, in the second, in underwear with her top off and her hair covering her breasts. If adjudicated delinquent – that is, found guilty in juvenile court – Nancy could have to register as a sex offender.
The threat of a teenager being charged for sexting a picture of herself in which she isn’t even naked has been met with met with justifiable alarm, but charging teens for sexting – even pictures of themselves – isn’t so uncommon. It may seem ridiculous or cruel, but that’s what happens when we place too much reliance on the criminal justice system to address cultural problems.
The case stems from the March 2016 discovery that as many as 25 students at Knoxville High School in Marion County, Iowa, were found to be sharing pictures in which students were semi-nude, nude, or nude with emojis covering their private parts, which they hid in their phones on an app disguised as a calculator. This came to light after two geniuses were caught trying to print those photos in the school library.
Police investigated and Marion County Attorney Ed Bull set up a diversion program in which the accused sexters could take a course on the dangers of sexting and admit what they did wrong, instead of facing juvenile charges.
Nancy and her parents, however, thought that her pictures were not that bad and therefore she shouldn’t have to go, so they filed a federal lawsuit to prevent Bull from bringing charges. In it, Nancy and her parents argue that the photos do not constitute exploitation or pornography and that coercing Nancy into the diversion program would violate her parents’ right to raise their child as they see fit and Nancy’s First Amendment right to freedom of expression.
They have a very good argument that Nancy’s pics do not violate any Iowa statute. The problem is prosecutors overcharge people to get them to take plea deals all the time. And this prosecutor has an extremely broad statute to work with: Iowa has convicted teens for sexting naked pictures of themselves in the past, and the statute is vague enough that they could allege Nancy was “enticing” the minor to whom she sent the picture into prohibited sexual activity.
Generally, the only option when one faces criminal or juvenile charges is to take the deal or fight the charges. However, in a 2010 decision stemming from a very similar case in Wyoming County, Pennsylvania, a federal appeals court upheld a temporary restraining order against a prosecutor who had threatened to charge three girls who photographed themselves in their underwear unless they participated in a diversion program that would entail probation, an educational course and writing an essay on why what they did was “unwise.” The prosecutor argued that his actions were necessary to protect the girls from themselves. The court found the threatened prosecution was retaliation for the girls’ exercise of their constitutional rights.
But many other kids haven’t been so fortunate. The laws surrounding sexting are pretty much a mess. When the sexting panic hit in the late 2000s, prosecutors started charging kids with child pornography for photographing and filming themselves in consensual acts. Child pornography laws arguably shouldn’t apply to any minors at all because they are the class of persons such laws are meant to protect. But that ship seems to have sailed. For the most part, courts and legislatures haven’t exempted minors from child pornography laws. Instead, legislatures have amended child pornography laws to give minors lesser punishments or opportunities for diversion, or they have passed new laws making sexting by minors its own crime.
That leaves overzealous prosecutors with plenty of tools for turning children into sex offenders. It also puts perhaps well-meaning prosecutors like Bull in a difficult situation. Given the widespread acceptance of the idea that this is a criminal matter and widespread accusations that law enforcement doesn’t take sexual exploitation of women seriously, Bull doesn’t really have the option of letting the parents and the school handle this. So he cast a wide net and swept up everybody the evidence suggested might not understand the dangers of sexting in a program some parents found to be “slut shaming.”
It would be more effective – and less shaming – to cast an even wider net and educate all students about the dangers of sexting as part of the standard curriculum, rather than re-educating kids who do something unwise after the fact. It has been argued that consensual private sexting can be a harmless sexual exploration that doesn’t result in STDs or pregnancy – but in the age of criminalization, there’s no way to practice safe sext, and kids should know that.
Sexting prosecutions are a cautionary tale about relying on our very punitive criminal justice system to solve our problems, which we should be particularly mindful of in formulating policies to address the distribution of intimate pictures without the subject’s permission, known as nonconsensual pornography or revenge porn.
In a recent study, nearly one in four people who received intimate photos admitted to forwarding them without permission. A proposed federal law banning nonconsensual pornography would put them all at risk of a five year prison sentence and a lifetime on the sex offender registry. While some of those potential felons are malicious exes, many others are likely just idiots – or children. We should consider all our options before arming prosecutors with new laws because, as Nancy Doe can tell you, they can be a bit unreasonable sometimes.