Sexting, Minors, and US Legislation: When Laws Intended to Protect
Have Unintended Consequences

This essay first appeared in the Internet Monitor project’s second annual report, Internet Monitor 2014: Reflections on the Digital World. The report, published by the Berkman Center for Internet & Society, is a collection of roughly three dozen short contributions that highlight and discuss some of the most compelling events and trends in the digitally networked environment over the past year.

In a terrible stroke of bad luck, 19-year-old Scott Lienhart was caught producing marijuana concentrate when police entered his backyard in pursuit of his roommate, who was attempting to outrun a minor in possession of alcohol charge. While searching the residence, sheriff detectives found what was described in their press release as ‘child pornography’ on Lienhart’s cell phone, leading to Lienhart being booked on child pornography charges in addition to drug charges (1). Yet how many
19-year-olds, very recently minors themselves, might have similar content on their phones? How do existing child pornography laws address sexting, in which minors produce sexually explicit images of themselves to share with other minors?

Existing US law prohibits the production, possession, sale, and distribution of child pornography, defined by Section 2256 of Title 18, United States Code as “any visual depiction of sexually explicit conduct involving someone under 18 years of age” (2). Penalties under child pornography laws can include fines, imprisonment, and registry as a sex offender. What is unclear in practice, however, is distinguishing between child sexual abuse images — in which the image is taken and distributed without consent or through violence or coercion, and which seem to be the intended target of existing law — and self-generated images taken by minors and willingly shared with other minors. Given the legislative grey area surrounding sexting, teens are potentially at risk of criminal charges for what has
become a widespread practice (3).

The relevance and applicability of laws intended to protect minors from the production of child sexual abuse images need further investigation in light of new practices of image sharing among teens. As incidents of arrests and criminalization of minors have been reported, Wolak, Finkelhor, and Mitchell (2012) urge a separation of “experimental” (cases involving only youth, with no abusive elements) from “aggravated” cases (in which an adult is involved, or a minor engaged in malicious, non-consensual,
or abusive behaviour). In their review of 3477 cases of youth-produced sexual materials in 2008–2009, Wolak, et al. find arrests occurred in 18% of cases related to experimental behaviour, 36% of youth-led aggravated cases, and 62% of cases involving an adult. 63% of the images were distributed by cell phone and were not posted on the Internet. Sex offender registration only occurred in unusual cases (4,5).

Returning to the case of Scott Lienhart, what remains unclear is the nature of the images. At what age did he receive them? What are the legal implications of keeping photos received as a minor, shared by minors, when one is no longer a minor? Wolak, et al. (2012) found that the majority of teen sexting images are consensually self-generated and not widely shared on the Internet. With the exception of the age of the participants, the conditions under which these images are created and distributed concretely differ from the abusive situations that existing child pornography laws address. Consideration of Wolak, et al.’s recommendations to apply “experimental” versus “aggravated” criteria to these cases might provide the nuance necessary to reduce vulnerabilities present under current
legislation.

Notes
1. “UCSB student arrested for possession of child porn on his cell phone,” press release from Santa Barbara Sheriff Office, January 14, 2014.
2. Child exploitation and obscenity section, US Department of Justice, .
3. Hanna Rosin, “Why Kids Sext.” The Atlantic, October 14, 2014.
4. J. Wolak, D. Finkelhor, and K. Mitchell, “How often are teens arrested for sexting? Data from a national sample of police cases,” Pediatrics, 129, 1–8, 2012.
5. Leonard Lopate, “Why do kids sext and is it a crime?” [Radio interview with Hanna Rosin and Marsha Levick], WNYC, October 24, 2014.

Photo credit: Rishi B., September 2012