Sexting and the law

Emily Bazelon mulls:

Is juvenile court the best place to handle this kind of relatively innocent behavior? Or is discipline for kids in a situation like this better left to their parents and, perhaps, their schools? The ACLU and the Juvenile Law Center argue against bringing these cases in juvenile court in a brief for a Pennsylvania sexting case that’s before the U.S. Court of Appeals for the Third Circuit. A juvenile record “may hinder a juvenile’s future plans to seek higher education, obtain employment, or enlist in the military,” the groups argue. They oppose a Pennsylvania bill that would treat teen sexting as a misdemeanor rather than a felony on the grounds that it will do more harm than good.

This is where the child advocates and the National District Attorneys Association part company, to a degree. “If you have two consenting teens who make a mistake in sending a compromising photo to another person, that’s something you don’t want to prosecute,” the NDAA’s Justin Fitzsimmons says. But in terms of the underlying statute: “We’re in favor of having state prosecutors have the discretion to charge it as a juvenile or not charge it at all.” It’s a subtle but important difference: Give prosecutors the discretion to charge sexting as a juvenile offense and trust them to use it wisely—or don’t give them this new tool for fear it will be misused and a lot of more or less good kids will end up with a record.

The argument against sending all those teen sexters to juvenile court is that at the moment what they’re doing is a weird form of “everyone’s doing it.” Polls show that upward of 15 percent or 20 percent of teens saying they’ve received or (less often) sent a suggestive picture. A lot of kids don’t seem to understand yet that sexts are like digital tattoos—that you can’t make them go away, however hard you scrub, and so you are stuck with them. Parents and teachers and anyone else with a megaphone surely have more work to do to impress on kids that it is the opposite of wise to send into the ether a compromising photo of yourself—or anyone else. But does it make sense to criminalize behavior—even if it’s by moving teens into juvenile proceedings—when so many kids are doing it?

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