On youth sexting, Pa. and other states act to prosecute, not persecute

Posted: October 20, 2012

In 2009, three teenage girls at Greensburg Salem High School in Western Pennsylvania sent nude or seminude cellphone pictures of themselves to their boyfriends.

All six were charged with child pornography, a felony that carries draconian sentences and lifelong consequences such as registering as a sex offender.

Wednesday, Pennsylvania joined a growing number of states in passing a bill that would punish kids for sexting, but not necessarily ruin their lives.

Under House Bill 815, youths 12 to 17 who send, view, or disseminate sexually explicit images can be charged with a misdemeanor or summary offense, depending on the circumstances. Instead of jail time and a tarnished future, offenders will be allowed to enter a diversionary educational program and afterward have their records wiped clean.

Gov. Corbett said he intends to sign the bill, which would go into effect 60 days later.

Since 2009, at least 19 states, including New Jersey, have enacted bills to address youth sexting, according to the National Conference of State Legislatures. This year, 13 states introduced or are considering sexting laws.

New Jersey's law, which went into effect April 1, allows first-time juvenile offenders to avoid prosecution and instead be placed in an educational program, though prosecutors can still file criminal charges against those who disseminate material with "malicious intent."

Pennsylvania's new law works on a tiered system. It's a summary offense - like underage drinking - if two juveniles consensually exchange photos. Someone who receives a picture and passes it along can be charged with a third-degree misdemeanor. Using a picture to harass or cyberbully is a second-degree misdemeanor.

Sexting of anyone under 12 could still lead to child-pornography charges.

The bill was authored by State Rep. Seth M. Grove, a Republican from York, after two teenage girls at Spring Grove High School in his district sent nude pictures of themselves to the boys' soccer team in 2008.

"This isn't child pornography," Grove said. "That's more an individual trying to abuse and exploit children."

Those girls were put into a juvenile program, but around the country, law enforcement officials and educators are struggling with how to deal with sexting and its consequences.

According to those opposed to the new law, sexting should not be a crime at all.

"It is victimizing victims," said Marsha Levick, deputy director of the Juvenile Law Center in Philadelphia. "If a kid reports that they were bullied into taking a photo of themselves and sharing it with others, that conduct is chargeable. . . . Kids that disseminate with intent to harm or harass, that's a crime. The rest of it is not."

Levick also pointed out that none of the child-pornography charges against sexting juveniles have stuck - including those brought against the teens from Greensburg Salem High School. As stupid as sexting may be, especially when it's consensual, "it's not harming anyone," she said.

The state District Attorney's Association, which supported the legislation, said its intent was not to create a new crime but to reduce penalties for those crimes that already exist.

"It's not often that district attorneys ask the General Assembly to reduce penalties for crimes, but we did here," said Greg Rowe, the association's legislative liaison and chief of legislation unit in the Philadelphia District Attorney's Office.

Judges and prosecutors will have a range of options for dealing with offenders, but incarceration in a juvenile facility will not be one of them, he said.

The law allows juveniles to avoid jail time and instead be placed in a diversionary program, which could include education or community service. Even students accused of cyberbullying, the most serious crime in the new law, will most likely not serve time, Rowe said.

"The goal is education; that's a huge part of it," he said. "To tell teenagers and preteenagers, if you do this, there can be lifelong consequences."

Some school officials wonder if the law will have any impact. Sean Hughes, principal of Lower Merion High School, said: "It's OK to have a clearly defined law, but . . . for us it goes back to 'How do we educate everybody properly on this?' "

Even the most well-intentioned education programs may not work, according to a professor who studies adolescents and technology at the University of San Diego.

Susannah Stern, who specializes in teens' online self-presentations, said that as long as youths have cellphones with cameras, sexting will not go away.

"I don't see how it's not going to happen," she said. "It's too easy, too tempting to use a camera as part of that sexual exploration."

She doesn't believe criminalizing X-rated pictures, which are almost always nudity and not sex acts, is the answer. A 13-year-old isn't going to understand the nuances of a law that differentiates between sending, receiving, and disseminating pictures.

"Criminalizing kids who are using tools to engage in normal developmental behavior," she said, "makes me sad."


Contact Kathy Boccella

at 610-313-8123, kboccella@phillynews.com or follow @kmboccella on Twitter.

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