Prosecutors in Teenage Sexting Cases Ask: Foolishness, or a Felony? November 13, 2015
By Erik Eckholm
The high school sweethearts were 16 when they traded nude cellphone pictures. There was no evidence of coercion or harassment. But under a literal interpretation of
had distributed child pornography. North Carolina
In February, prosecutors in
charged the two teenagers with the felony of “exploiting a minor,” which could
have brought them years in prison and decades on the sex offender registry —
for privately sharing images of themselves. Fayetteville
After an outcry, both were eventually allowed to plead, instead, to misdemeanors. They were put on a year’s probation.
Whether and how to charge teenage sexters has become a quandary for prosecutors nationwide, forcing them to weigh when to muster the harsh force of criminal justice, often with ill-fitting laws from a pre-Internet era, and when to back off and let schools and families deal with youthful indiscretions.
Facing those choices on a large scale now, in the glare of national attention, is Thom LeDoux, the district attorney in the county that includes
where more than 100 students at the high school were apparently exchanging nude pictures. Cañon City, Colo.
Mr. LeDoux said in a telephone interview that he does not plan to file charges against those who simply passed around pictures. But felony charges could be in store for some, he added — if an adult is involved; if there is evidence of coercion, illegal sexual activity or bullying; or if pictures were posted on public websites.
Erotically charged cellphone pictures or videos passed around by teenagers often meet the legal definition of child pornography, making them the subject of felony laws that were written with true predators in mind. So when a 16-year-old girl emails a raunchy picture of herself to a boy, she has in theory created and distributed child pornography.
If the boy sends the picture to 20 others, he has distributed, and they all have possessed, child pornography.
Yet few prosecutors want to ruin the lives of teenagers for one-time displays of immaturity. Across the country, district attorneys are forced to decide: When are youthful actions so malicious or harmful that they should be prosecuted? When are serious felony charges and perhaps lifetime branding as a sex offender called for, and when is probation and, perhaps, community service or counseling enough?
About 20 states have adopted new laws intended to address juvenile sexting by providing a less severe range of legal responses to personal photo-sharing, including misdemeanor charges that may be expunged, and required community service or counseling. But even with these more subtle tools, the prosecutors have to make delicate calls.
“Who do you charge, how far out do you charge?” asked Bill Harding, chief of the Internet crimes unit of
who sees new sexting cases weekly. Well aware that the penalties can be
life-altering, he and most other prosecutors do not pursue charges in some
cases and find ways to impose misdemeanors, not creating a permanent criminal
record, in others. Michigan
Some prosecutors and judges are getting creative. In
in March, three high school boys faced felony charges for posting on Twitter a
photograph of one of them engaged in a sex act with a girl. Macomb County
But the judge, under a youthful offender program, instead put them on probation for three years on condition that they have no contact with one another or the girl and — in a punishment even the prosecutor praised as fitting — not use cellphones for at least one year.
Although most juvenile court proceedings are private, it appears that, in practice, severe punishments are rarely meted out for merely trading nude photos.
“A 15-year-old boy shares a risqué photo of his girlfriend with his buddies: Under the strictest definition of the law, you have a felony,” said William Fitzpatrick, the district attorney of
Onondaga County in New York,
which includes .
“But we would never prosecute a case like that.” Syracuse
Mr. Fitzpatrick, as president of the National District Attorneys Association, has urged prosecutors across the country to approach teenage sexting with a light hand, avoiding criminal charges in many cases and finding ways to impose less severe and lasting punishments in others.
But each case is different, prosecutors say, and in deciding whether and what to charge they must, as Mr. LeDoux in
indicated, see if there are aggravating circumstances. Colorado
Mr. Fitzpatrick and many legal scholars have called for more states to join those that have adopted the new laws.
“My advice to my colleagues is to lobby legislatures to get a statute appropriate to the conduct involved,” Mr. Fitzpatrick said. “If the motivation is immaturity and teenage imbecility, there ought to be alternatives available in all 50 states.”
Jesse Weins, an expert in criminal justice at
, said the
legal system had simply not kept up with technology. “The law is behind the
times,” he said. Dakota Wesleyan
For decades, he noted, officials and the public have endorsed harsh penalties for trading in sexual images of children.
“And now, with a completely different scenario, those laws are there,” he said.
Statutory change has been halting, he added, because people fear creating possible loopholes in the battle against child pornography.
The contrasting forces at play are evident in a continuing case in
Three boys and a girl, ranging in ages from 14 to 16, filmed themselves having
sex and posted it on Twitter. The acts were consensual, officials said, but
posting the image online violated child pornography laws. Joliet, Ill.
In March, all four were charged with felonies. The judge has since allowed two of the boys to plead to a misdemeanor charge of “possession of harmful material,” said Charles B. Pelkie, a spokesman for the
state’s attorney. They will be on probation for 18 months and can use the
Internet only for school-related purposes. Will County
But the original charges are still pending for the girl and one of the boys, Mr. Pelkie said, for reasons he said he could not discuss.
“The goal here is not to criminalize a situation that involves one instance of teenage foolishness,” Mr. Pelkie said, adding that his office goes out of its way not to destroy the lives of otherwise good children.
But the video these four created is legally child pornography and, he said, “those are the charges you start with, the charges that the evidence supports.”
Simply being the object of felony charges, even if they are ultimately dismissed, can be scarring and have lasting impacts, said Rodney Leffler, a defense lawyer in Fairfax, Va., who has handled dozens of sexting cases in recent years, including some that started with more serious charges and ended with misdemeanor judgments.
“Even though you’re not convicted, the charges don’t really go away,” he said, noting that searchable records exist of felony prosecutions. Apart from the stigma, he said, such history may undermine college and job applications far into the future.
In the case of the
couple, before the charges were reduced, the students faced months of public
humiliation as they were identified in the local news media. The boy, a
quarterback, was temporarily suspended from the football team. North Carolina
Mr. Fitzpatrick, the prosecutor in
said his office tried to avoid arrests in sexting cases, let alone press
criminal charges, especially if involved teenagers and parents take the matter
seriously and repetition of the behavior seems unlikely. New
His office, in a program that has been copied across the country, is also working to prevent sexting by educating students and parents about the personal and legal risks.
When an assistant district attorney makes the presentation in high schools, he said, it is clear that it is hitting home.
“About a third of the way through,” he said, “you see this wave of students frantically hitting the erase buttons on their phones.”