DAs and law enforcement keep threatening students with Child Pornography felony charges for sexting

by dmatson on September 14, 2017

School talks where local prosecutors and law enforcement talk to students about the dangers of “sexting”, or sending illicit photos are becoming increasingly common. While teen sexting is a societal issue and a problem for kids, the question of whether serious felony charges is an appropriate answer is rarely asked.

A local Alabama district attorney spoke to students at the Verbana High School, in Chilton County, AL about how “sexting” could result in life changing felony criminal charges and a 10 year prison sentence.

It is technically true that under the law, any transmission of nude images of a person under 17, or even just possessing such a photo on your iPad can result in a child pornography charge with up to a 10 year prison sentence attached. Many state laws do not make any distinction between kids sending and sharing photos of themselves willingly (if foolishly) or adults exploiting kids photos for their own gratification.

Specifically, under Alabama state law Possession of child pornography is a class C felony. Even if it is just a picture of yourself. And it also includes a requirement that you register as a sex offender for the rest of your life.

For example, production of child pornography, i.e. “taking a picture”, is a class A felony in Alabama, which is a 10-99 year prison sentence.

“Sending a naked picture” of a person under 17 years of age is disseminating child pornography, which is a Class B felony, the legal consequences of which are 2 to 20 years in prison PER IMAGE.

CJ Robinson of the Chilton County Alabama District Attorney’s Office is quoted as saying:  “It’s not worth it for the rest of your life to take that photo.”

Which is … true.  But he doesn’t appear interested in adding that it is crazy for the DA to be threatening or prosecuting such charges on kids.

Is there simply no acknowledgment that this application of child pornography laws is RIDICULOUS? That a 16-year-old could make a dumb mistake, and share a nude photo of herself with her boyfriend and be facing a 10-year minimum prison sentence and a lifetime as a sex offender?!?

In what public safety interest would such a punishment serve?

Child pornography laws were written to protect kids from predators, not kids from being stupid, impulsive and careless in exploring their sexuality. Yes, of course, we should warn kids about the damage such behavior could cause to their life. We shouldn’t be threatening to cause them additional tremendous harm for doing so.

It is true that bullying, threatening or extorting via the internet, either over sexting images or for any reason is another, much more serious matter. Any harassment and bullying via text, social media, or messaging apps is a real issue and a problem for kids in the age of non-stop and unrelenting online communication access.

But to just warn kids about the risk of sharing sexually suggestive or explicit photos, yet accept a life-destroying outcome of sharing a picture as a perfectly reasonable application of the law is INSANE.

Do high school “sexting risks” talks really need law enforcement threatening felony charges?

Unfortunately, these “scared straight” style high school talks about sexting from law enforcement are quite common.

In Chino Hills, California, Police Officer John Cervantes warns students ““Everyone who sends or receives [an explicit image] could be convicted of a felony,”

In Colombus, OH, Assistant Prosecuting Attorney, Zach Imwalle said any sharing of naked pictures “are all types of sexting and those are illegal and a felony”.

In Nebraska, Washington County Sheriff’s Deputy Nikki Kruse gives a talk about a high school girl who shared nude photos of herself just with her boyfriend. Then after a breakup, the boyfriend shares the photos with others, and the pictures spread across several schools, with the ultimate result of the girl committing suicide.

As if this awful story isn’t tragic enough, the Deputy adds to the horror with legal threats.  “Legally, it can be lifetime catastrophic. Just one picture can lead to the legal label of a sex offender.”

The principal of the school piles on: “These are crimes. This is not fun and games. It doesn’t have to do with a relationship or a non-relationship a kid has. It has to do with what you are possessing or distributing or soliciting.”

A story from Minnesota is subtlely titled “From JPG to Jail”, and a talk from Scott County Minnesota Sheriff Luke Hennen adds the warning: “Teens could be charged with a felony if the images shared are of someone who is underage depicting sexual conduct, even if it is of themselves.”

In North Carolina, a local Sheriff acknowledges that “The goal is to correct the issue, not punish the issue,” and that juveniles are charged in juvenile court, and “sending photographs or videos of juveniles that show nudity or other lewd acts are allowed on their first offense to sign a contract with the juvenile court that involves community service, getting good grades and taking educational classes”.

But that still glosses over the larger point that a law that potentially charges kids with a felony sex offense is wildly out of proportion, and certainly not in keeping with the original intent of the child pornography statutes. And that somehow charging kids with “only” juvenile misdemeanor criminal offenses is a fair and just way to handle the issue.

In Andover NY, law enforcement and administrators want “to make sure the students are aware they can get into serious legal trouble when explicit pictures are involved or when they’re communicating with someone they don’t personally know online”, regardless of whether there is any malicious intent or harm to others, apparently.

The stunning fact is that almost no one seems to recognize that the criminal justice system should not be a part of this process at all.

It is perfectly reasonable to warn kids and teach them about the trouble they can get into with careless use of photos on their phones, and the misery they can cause to their own lives. Cyberbulling is real, and other kids can be incredibly cruel if embarrassing pictures end up being circulated, which is all too common and likely.

And it is absolutely appropriate to let kids know that there ARE predators out there who will try to gain their confidence and exploit them. Social and messaging apps like Snapchat, Kik messenger, Oovoo App, and Meet me are widely used by teens and are known to adults those looking to manipulate them.

But are we operating from a reasonable premise that felony charges, being a registered sex offender, and possibly going to prison is a logical and fair outcome to expect for a child simply taking or texting an illicit photo of herself?

alabama sexting lawsTeen Sexting is a social problem, not a criminal issue

Kids being kids, learning about and exploring their sexuality in the age with everyone having a nonstop communication and sharing device in their pocket has obvious and inevitable consequences. And the laws of what is and isn’t “child pornography”, and the difference in intent between exploration or over-sharing, and outright exploitation is too subtle for how the laws have been written.

We can’t be treating kids like criminals for acting on impulse, just because those impulses now have potentially long lasting implications because of the ever-present online world they are all connected to.

The power of the state to prosecute and destroy is simply too great

It would have been interesting to hear the talk in context, and understand if there was any hesitance or circumspection from DA Robinson about the power that prosecutors have in these cases. But, as reported in the news story, all we heard was:

  • Taking a phone can result in a prison sentence that ruins your life
  • DAs have the power to look up every social media post, snap or text you’ve ever sent
  • Sending a mean text is the legal equivalent of slapping someone, and could be prosecuted as such

These powers can be reasonably and appropriately applied in criminal prosecutions, but in the context of this talk, that power sounds way out of bounds. Was there any mention of prosecutorial discretion, or the best interest of justice? Or was this talk simply meant to warn and scare kids, and hold the power of the DAs office, and these laws over them as a threat.

This is why we need sexting laws reform, in Alabama, and in all states where DAs accept as a given that they have the power to imprison teenagers for behaving like teenagers, and harming no one but themselves.

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