There’s no “undo” button

Seven things you should know about sexting

By Jonathan Peters

In early August, a 17-year-old boy was placed on probation for sending a pornographic cell phone video to his 15-year-old girlfriend, who had initiated the sending. The girl’s mother found the video and filed a criminal complaint against the boy, and eventually prosecutors charged him with “manufacturing and distributing child pornography.”

To prove the video featured the boy in question, the police photographed his genitals for a side-by-side comparison – and obtained a warrant to photograph the boy a second time, after injecting him with a drug that would induce an erection. Police and prosecutors backed down only after being told, time and again, how stupid they were.

For example, the boy’s guardian ad litem, whose role was to advise the court on the child’s best interest, told The Washington Post, “They’re using a statute that was designed to protect children from being exploited in a sexual manner to take a picture of this young man in a sexually explicit manner. The irony is incredible.”

Hence, the probation.

Police and prosecutors, under pressure, didn’t serve the warrant for additional photos, and they didn’t use the ones they had taken. So, the judge dispatched of the case by telling the boy he would dismiss the child pornography charges if the boy stayed out of trouble for one year. It was a victory of sorts because the charges could have brought four years in prison and a spot on the sex-offender registry.

That case occurred in Virginia, but sexting is all around us – it’s done by youth and adults, it’s done by the human onomatopoeia Anthony Weiner, it’s done consensually and non-consensually and it’s been the subject of legislation in numerous states, including Ohio.

But what is sexting? Who’s really doing it? And what are the consequences, if any, for doing it? Does the First Amendment protect sexting as a form of speech? Was the Virginia case atypical? These are the questions you’re too afraid to ask your doctor, so I’m here to answer them.

1. The most basic definition of sexting is the sending or receiving of sexually explicit photos or videos by cell phone.

2. According to a 2012 study in the journal Pediatrics, roughly 10 percent of youth (10-17 years old) said they had appeared in or created nude or nearly nude images, or received such images, in the past year. Of the youth (2.5 percent) who said they had appeared in or created the images, 61 percent were girls, and 72 percent were 16 or 17 years old.

3. According to another 2012 study in Pediatrics, youth sexting cases that came to the attention of police (3,477 in the year studied, from 2008-2009) typically included aggravating circumstances, such as the involvement of an adult or some kind of malicious, non-consensual behavior. Arrest is not typical in youth cases that don’t involve an adult.

4. According to a 2013 study in the Journal of Adolescent Health, sexting is very much a part of young adults’ (18-24 years old) sexual relationships, but it’s not necessarily associated with riskier behavior. For example, sexting is not associated with more sexual partners, the study found, or a “higher proportion of unprotected sex partners for either vaginal sex or anal sex in the past 30 days.”

5. According to a 2014 Pew Research study, sexting among adults is on the rise, with 9 percent of adult cell phone owners reporting they had sent an explicit photo to someone, up from 6 percent in 2012; and 20 percent of adult cell phone owners reporting they had received an explicit photo from someone, up from 15 percent in 2012. Married and partnered adults were as likely as single adults to say they had sent explicit photos.

6. Sexual expression receives First Amendment protection. However, child pornography laws ban explicit depictions of a minor. Obscenity laws ban material that appeals to the prurient interest and lacks literary, artistic or other value. General laws make it a crime to send harmful or explicit material to a minor. Privacy laws – in limited ways – forbid the sharing of intimate depictions of a person without his or her consent. And, since 2009, at least 20 states have enacted bills to address youth sexting. Ohio has tried but failed.

7) All of which is to say: If you’re an adult consensually sexting an adult, you’re probably fine. If you’re an adult non-consensually sexting an adult or sharing the sexts with third parties, you’re in trouble. If you’re an adult sexting a youth, you’re in trouble. If you’re a youth non-consensually sexting a youth or sharing the sexts with third parties, you’re in trouble. And if you’re a youth consensually sexting a youth, it’s hard to say – it depends on the laws and prosecutors in your area.

7.5) If your name is Anthony Weiner, you’re in trouble.

Jonathan Peters, the press freedom correspondent for the Columbia Journalism Review, is an assistant professor at the University of Kansas, where he teaches media law. A native Ohioan, he practices First Amendment law in and around Columbus.

Reach DCP guest writer Jonathan Peters at ContactUs@DaytonCityPaper.com.

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