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 North Carolina law, each had distributed child pornography.
In February, prosecutors in Fayetteville 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.
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 Cañon City, Colo., where more than 100 students at the high school were apparently exchanging nude pictures.
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 e-mails 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 Macomb County in Michigan, 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.
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, district attorney of Onondaga County in New York, which includes Syracuse. “But we would never prosecute a case like that.”
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 LeDoux in Colorado indicated, see if there are aggravating circumstances.
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,” 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 Dakota Wesleyan University, said the legal system had simply not kept up with technology. “The law is behind the times,” he said.
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.