So-called “sexting” is such a disastrously bad idea that I shouldn’t even have to explain why it’s a bad idea. Here is the thing: The “sexting” participant provides his or her partner with evidence — a permanent digital record of text messages and images — that the partner can then use as he or she pleases. Any young woman who sends nude selfies to a guy can just presume that he will immediately show the photos to all his friends. They always do. That’s why guys ask for nude photos from girls, in order to display them to their buddies as trophies. Any guy who asks for a nude photo is a creep, and any girl who sends a nude photo is a fool. The fact that we now have laws against so-called “revenge porn” (i.e., the unauthorized distribution of nude photos and/or videos, typically as revenge against an ex-girlfriend) does not change the reality that only a fool would ever send a nude photo of herself to a guy, and it is not “victim-blaming” to say so, no matter what any feminist tries to tell you.
“But Stacy, all the kids are doing it!”
No, they are not, and that kind of peer-pressure excuse is part of the problem. Responsible adults do not endorse foolish behavior simply because it is common behavior, and “sexting” is foolish behavior. Even if you did want to engage in reckless promiscuity, it would be foolish to create a permanent digital record of such behavior. Trust me when I say that my kids have been sternly warned to avoid doing this, and to avoid associating with anyone who does it, because nothing good can ever result from it. (See also, “Hit-It-and-Quit-It on Tinder.”) Unfortunately, other parents have not perceived this danger and have not warned their children, thus leading young people into predictably disastrous results:
Later this month, a North Carolina high school student will appear in a state court and face five child pornography-related charges for engaging in consensual sexting with his girlfriend.
What’s strange is that of the five charges he faces, four of them are for taking and possessing nude photos of himself on his own phone — the final charge is for possessing one nude photo his girlfriend took for him. There is no evidence of coercion or further distribution of the images anywhere beyond the two teenagers’ phones.
Similarly, the young woman was originally charged with two counts of sexual exploitation of a minor — but was listed on her warrant for arrest as both perpetrator and victim. The case illustrates a bizarre legal quandry that has resulted in state law being far behind technology and unable to distinguish between predatory child pornography and innocent (if ill-advised) behavior of teenagers.
On July 21, 2015, the young woman took a plea deal whereby the felony charges were dropped, but she pleaded guilty to a misdemeanor charge, which will be expunged after she completes a year of probation. Over the next 11 months, she is not allowed to possess a cell phone, among other restrictions.
Professor Glenn Reynolds comments: “They’re too young to consent to naked pictures, but not too young to have their lives ruined for doing so.” Such is the libertarian reaction, but this is one of those instances (like the Kaitlyn Hunt case) where my social conservative impulse overrides every other concern. At first glance, the prosecution of teenagers for such behavior may seem unnecessarily draconian, yet we have to consider the alternative. What would be the consequences of a libertarian laissez-faire attitude toward minors producing what is, as a matter of law, illegal child pornography?
The laws against child pornography proscribe it in every manner — production, distribution, possession — and therefore, under existing law, the minor who takes nude selfies must be regarded as having committed a crime (production). Another crime (distribution) is committed when the minor transmits the nude selfies to anyone else, and the recipient of such a photo commits a crime (possession) the minute he or she views or downloads the illegal image.
In an age where digital photographic technology is ubiquitous, should minors themselves be exempt from prosecution under these laws? If you answer “yes” to that question, then you are saying that illegal images of your young son or daughter could be circulating online — every kid in school could see this stuff — and no crime has been committed unless an adult gains access to these images. No. We don’t want that.
A pornographic image of anyone under 18 is forever illegal. We may call this the “Traci Lords Rule,” in honor of a once-famous porn performer who lied about her age and started doing nude modeling when she was only 15, appearing in her first porn video at 16:
After being featured in the September 1984 issue of Penthouse magazine, Lords appeared in dozens of illegal videos between 1984 and 1986, and became one of the most sought-after pornstars of the era. In May 1986, when authorities discovered she had been underage while making all but one of her pornographic films, distributors were ordered to remove all her material to avoid the risk of prosecution for trafficking in child pornography. The withdrawal of her films cost millions of dollars and her case became the biggest scandal to affect the adult film industry.
No one at Penthouse knew Traci Lords was a minor, a student at Redondo Beach High School, when that pictorial launched her to porn stardom. Yet anyone today could conceivably be prosecuted for possession of child pornography if they have a copy of that 1984 magazine or an old VHS tape of any of the films Traci Lords made as a minor. It is contraband, like heroin, and no one can legally possess contraband. We return, then, to the case in North Carolina, where 16-year-olds are prosecuted as adults for having exchanged illegal images while “sexting.” Certainly, we may agree that these teenagers are “too young to have their lives ruined,” as Professor Reynolds says, but what is the alternative? What would be the consequences if law enforcement took a laissez-faire stance toward such behavior?
Any responsible adult must shudder to think of the conditions that might prevail if this behavior became normalized among high-school kids, because we know it would not stop there. If you give 16-year-olds a get-out-of-jail-free card for this stuff, how will you draw the line when the 15- and 14-year-olds do it? Next thing you know, the middle-school kids will be sending each other pornographic selfies, and there will be no feasible way to draw the line at all.
“But Stacy, all the kids are doing it!”
No, they are not — but even if it were that common, the law is still the law, crime is still crime, and evidence is still evidence.
Adults who grew up before this kind of digital technology existed may be tempted to think of stuff they did as teenagers that was illegal (or simply embarrassing in hindsight) and thus, in their mind, deserving of leniency. Be that as it may, there is no evidence of how much dope you smoked in 1976 or what you did with your girlfriend in 1986. Until quite recently, people didn’t have access to the kind of technology to produce digital evidence of everything they did, yet now such technology is everywhere, including your kid’s cellphone or laptop or tablet. Consider how these two North Carolina teenagers came to the attention of law enforcement:
The Fayetteville girl, Brianna Denson, was sexting with her boyfriend, Cormega Zyon Copening, the Sheriff’s Office said. The agency hit Copening with five sexual exploitation of a minor charges — four for making and possessing two sexually explicit pictures of himself and the last for possessing a copy of the picture that Denson made for him. . . .
The charges have already forced [Copening] off the football team at Jack Britt High School. He had been the quarterback. . . .
The Sheriff’s Office investigates sexting incidents several times a month, [Cumberland County Sheriff Ronnie] Mitchell estimated. “More frequently than we would like,” he said.
The investigations usually are into instances in which photos are shared among a group instead of just within a couple, he said. To his knowledge, Denson’s and Copening’s pictures weren’t shared with anyone else. He said they were discovered during an investigation of other explicit photos that were being shared among teens without the consent of the person or persons pictured.
It would appear that Copening and his high-school buddies were sharing around whatever nude photos of girls they had obtained and, when this activity came to the attention of authorities, the investigation led police to search Copening’s phone, a search that led to the discovery of Denson’s photos — illegal images, which any adult would be imprisoned for possessing — as well as “sexually explicit pictures of himself,” which are likewise illegal. District Attorney Billy West told the Fayetteville Observer that “in cases where the defendants and victims were willing participants and close in age, his office typically lets them plead guilty to a misdemeanor with a deferred prosecution.” Denson took the plea, and thus avoided “the life-ruining requirement that she register as a sex offender,” whereas it seems Copening is willing to risk a jury trial.
TAKE THE PLEA DEAL, BOY!
It’s for your own good. Yeah, I know, it seems unfair. “Everybody’s doing it” and “boys will be boys,” but this does not negate the evidence — the unmistakable digital proof — right there on your cell phone, evidence you were too foolish to think of as evidence, and you are the one responsible for that foolishness.
Stupid is as stupid does. Don’t do the crime if you can’t do the time.