+1 (902) 468 3066 dbb@burnsidelaw.net

Open Forum: Sexting Issues Discussion

Last evening, some of the students in my Constitutional Law II course at UCF asked several, challenging questions regarding the constitutional prohibition on child porn, and the enforcement mechanisms used by the States on sexting offenses.  For those unaware, “sexting” is the process of text messaging to another various sexually explicit images.  This issue has taken on significance in light of the prosecution in several states, including Florida, of young individuals, i.e. teens and/or those under 21 years of age, with child pornography offenses — despite these sexting messages involving consensual creation of images, often between boyfriend/girlfriend.

A couple of years back, I was involved in a notable case, that of Philip Alpert.  Alpert had been prosecuted by Florida authorities after sending sexting messages (originally sent to him by his girlfriend) to some friends following an argument with the girlfriend.  Alpert was charged with transmission of child pornography, a third-degree felony and an offense which is deemed “sexual offender eligible.”  My old firm and I were not involved with the original criminal defense.

Alpert was compelled to plead out to his offense, under a threat from prosecutors to file additional charges for each, separate sexting image.  Alpert received probation, but he also was tagged — potentially, for the rest of his life — as a “sexual offender.”  Naturally, this label had, and will continue to have, a detrimental impact upon every aspect of Alpert’s livelihood.  At the time that he had retained my old firm and me, Alpert had been expelled from community college, and then lost his job with an electronics chain.

Several states have made progress with removing the stigma of a felony, as well as a sexual offender label, from cases such as Alpert.  States such as Utah, Vermont and Illinois passed legislation which — in their own, separate ways — redefined child porn so as to eliminate sexting cases involving minors or individuals under a certain age, and involving situations such as Alpert’s.  Florida has yet to make such strives.  Former State Senator Dave Aronberg had pushed potential legislation back in 2009 — unfortunately, he was unable to find a GOP co-sponsor for this sensible legislation.  Considering how widespread sexting is among America’s youth, it is absolutely shocking to consider that any one of these individuals could be nabbed for a felony offense that would brand them as “sexual offenders,” and ostensibly for the entirety of their lives.

Any way, let the open forum on this commence ….

5 Comments on This Post
  1. Mr Hat

    Two of the most comprehensive articles I’ve found off the top of my head: http://www.usatoday.com/tech/wireless/2009-03-11-sexting_N.htm

    Now despite it, like all encyclopedias, being utterly unacceptable as an academic source this is the sourt of thing that it’s great to treat wikipedia like a citation-collection-engine for:

    Legally I find myself really only able argue that the use of these laws against these kids like this is so absurd on its face that it becomes extremely difficult to form any kind of coherent argument against it beyond pointing out that very absurdity. It’s right up there with charging minors as adults for actions that were only illegal purely because minors supposedly dont have the capacity of an adult… either they do or they don’t, you can’t have it both ways.

    Personally I attribute the entire thing to a leftover internalization of extremist predestinationist values, this kind of prosecution really does fit the calvinist-style principles that fundamentally bad things happening to people justifies DOING more bad things to them because it’s some kind of judgment of character that said bad thing occured to begin with. Tie that in with American culture’s MASSIVE issues with sexuality (ie it’s evil and wrong full stop) and you basically have a modern day witch hunt… which if you look at the patterns of behavior for everyone involved in this it really does fit: Hysteria, finger pointing, and victim-blaming.

  2. Derek Brett

    I thought that this might be of contribution to the overall discussion. It derives from the Concurring Opinions Blog, and is an article titled: “The Sext Wars: Consent, Secrecy & Privacy,” by Mary Anne Franks, and located at – http://www.concurringopinions.com/archives/2011/03/the-sext-wars-consent-secrecy-and-privacy.html:

    The sexting phenomenon reveals much about contemporary social attitudes towards sexual expression, consent, and privacy, especially with regard to minors. One of the most troubling aspects of the debate over what can and should be done about “sexting-gone-bad” scenarios is the tendency to treat the parties involved as more or less moral and legal equivalents. A typical “sexting-gone-bad” scenario is one in which a young person takes an intimate cellphone photograph of him- or herself, forwards it to an actual or potential romantic interest, and discovers that this photograph has been forwarded to many other individuals, including strangers, classmates, and family members. There are at least four distinct categories of individuals involved in such a scenario: the creator of the image, the intended recipient, the distributor, and the unintended recipient. The second and third categories are sometimes the same person, but not always, and the number of individuals in the fourth category is potentially enormous. The legal response in many of the first sexting cases was to bring child pornography charges (creation, distribution, or possession) against all the individuals involved; the social response has likewise treated the various players as roughly morally equivalent. In some sexting cases, the distributors of the images have not been charged at all, whereas the creators have been. The view that the creators of sexual cellphone images are as bad as or worse than the distributors of those images combines many troubling social attitudes about sexual expression and privacy.

    First and most obviously, child pornography is clearly not the right frame of reference for the majority of these cases. The specter of child pornography, rightly invoked in relationships marked by coercion, exploitation, and serious asymmetries of age and power, is too often applied to any situation involving minors and sexuality. Whatever legitimate concerns society might have about sexual activity among consenting teenagers of roughly the same age, they should be clearly distinguished from concerns about pre-pubescent sexual activity and sexual contact between adults and children. The fact that the consequences of a conviction for child pornography include lifelong registration as a sex offender illustrates how poorly suited child porn charges are for most sexting cases.

    Thankfully, states have begun to move away from the knee-jerk use of child pornography charges in sexting cases, but the treatment of creators as equal to or worse than distributors persists in both legal and social responses to sexting. The most alarming feature of this equivalence is its erasure of the significance of consent. In the typical sexting scenario (I leave to one side what I would call “harassment sexting” and deal only with images that the creator reasonably believes are welcome) a minor makes a choice to reveal herself sexually to one other person. We may think her choice is unwise or unduly motivated by social pressure, but we must recognize that it is in any event a consensual sexual act (barring extreme youth or mental incapacity). By contrast, the person who distributes the image to other individuals acts not only without consent but most often with the full knowledge and intent that the creator will be humiliated by the distribution. Thus, the distributor engages in a non-consensual sexual act. There is nothing equivalent about consensual and non-consensual sexual acts – the person who sends an image of herself to another person is not equally or more responsible than the person who takes that image and forwards it to hundreds of others. To hold otherwise is to engage in victim-blaming, whether the act in question is sexting or sexual assault. A civilized society recognizes that a person subjected to non-consensual sexual activity should not be scrutinized for what she wore, how much she drank, whom she flirted with, or whether she sent someone a sexual image of herself. The only proper and relevant question is whether she consented to the act in question.

    The false equivalence between creators and distributors moreover rests on an implicit (and sometimes explicit) equation of privacy and secrecy. According to this simplistic and pernicious view, a person who exposes details about herself to another cannot complain when those details are subsequently exposed to many others. The idea seems to be that if one really does not want an intimate detail to be exposed to public view, one should never share that detail with anyone. To equate privacy with secrecy in this way is to justify virtually limitless exposure of every intimate detail of one’s life. There are very few aspects of life that are truly secret; most people have revealed their health status, personal transgressions, family history, or sexuality to someone at some point in their lives. This cannot mean that if those details are maliciously exposed to public view without our consent we can only hang their heads in shame for bringing it upon ourselves. As Justice Raymond Peters of the California Supreme Court wrote in Briscoe v. Reader’s Digest Association, the claim of privacy “is not so much one of total secrecy as it is of the right to define one’s circle of intimacy–to choose who shall see beneath the quotidian mask. Loss of control over which “face” one puts on may result in literal loss of self-identity and is humiliating beneath the gaze of those whose curiosity treats a human being as an object.”

    Where there is hysteria about the creation of the “sext,” there is cynicism about its distribution. Glaringly absent in the hand-wringing about sexting is scrutiny of the distributors’ behavior. To knowingly expose a person’s intimate details without their consent is an act of malice. This is true whether the motivation is to embellish one’s sexual reputation, to take revenge after one’s advances are spurned or a relationship has ended, or to destroy a reputation through allegations of sexual promiscuity. Such an act demonstrates not only an alarming lack of empathy but a disregard for sexual autonomy, and contributes to the disciplining of sexual expression through shame and humiliation. In spite of this, the mass distribution of sexts is often treated as an inevitability. Those individuals whose lives and reputations have been destroyed by sexting are told they should have “known better,” as if the causal relation between sending an image to one intended recipient and its eventual delivery to hundreds or thousand of others is the same as standing out in the rain and getting wet. Given that so many sexting scenarios involve female creators and male distributors, the failure to examine and challenge the actions of distributors also perpetuates the gender double standard regarding sex. Girls must carefully regulate their sexual expression lest they be viewed as sluts; boys get a pass for their behavior because “boys will be boys.”

    A recent New York Times article featured the story of “Margarite,” an eighth-grader whose life has been turned upside down following a sexting scandal. Margarite took a naked picture of herself in front of a mirror and sent it to her then-boyfriend, Isaiah. After they broke up, Isaiah (for reasons that are unclear) forwarded the picture to a former friend of Margarite’s, who forwarded it to everyone in her contact list after adding the text caption, “Ho Alert.” Those contacts forwarded the picture to their contacts, and so on, until nearly every student in the four middle schools in Margarite’s town had seen it. Soon Margarite’s cellphone was full of text messages – expressions of concern, warnings, and leers. Margarite transferred to a school 15 miles away from her old one, but quickly discovered that the students there also had her image in their cellphones. Margarite struggled under the taunts of “slut” and “whore” from her new peers. To his great credit, the county prosecutor, Rick Peters, declined to bring charges against Margarite, but did charge the students responsible for disseminating her image (originally the charges were child pornography; he later amended them to telephone harassment). The media outcry that ensued focused not on the malicious actions of the distributors, or on Margarite’s daily struggle to obtain an education in the face of jeers, insults, and unwelcome sexual advances, but – predictably, tellingly – on the fact that Margarite was not charged along with the others. But perhaps the most depressing detail of all is the self-deprecating lesson that Margarite seems to have taken away from being subjected to sexual exposure and harassment for indulging in a romantic gesture. Asked what she would tell a student thinking of sending an intimate picture, she replied that if they feel “‘like, they’re not sure they should, then don’t do it at all. I mean, what are you thinking? It’s freaking stupid!’”

  3. Derek Brett

    Florida may be moving forward with some changes designed to exempt minors from child porn laws for sexting: http://apps.lobbytools.com/pub/index.cfm?type=bills&id=30371&utm_source=publisher&utm_medium=js&utm_campaign=content_share

    I have yet to read the Bill’s text to make assessment as to its effectiveness. The summary makes such legislation appear promising. Also, the Bill appears to be moving forward during the Session. Of course, that means nothing at this point. Yet, unlike about 80-90% of most proposed legislation, this Bill appears to be making steady progress through the House. I do not know if there is a Senate companion bill.

  4. Derek Brett

    An article was just published in the just-released edition of the WIlliam & Mary Law Review. It involves a discussion of sexting in the context of sexual offender legislation. Here is the link: http://www.wmlawreview.org/files/Forbes.pdf.

  5. From a constitutional law perspective the answer is fairly simple; the Supreme Court of the US has repeatedly stated that unless pornography is obscene or the result of sexual abuse, it cannot be prohibited. Also, the exception the First Amendment protection defined in N.Y. v. Ferber was defined according the the statute in question, which defined a child as a person under 16; at no point did the court remotely suggest that states should have the leeway to arbitrarily change the limit to 18 or 21. Hence, a First Amendment defense should succeed for most sexting cases.

    The more difficult problem is the moral problem, which doesn’t have such a simple answer. It’s definitely not hard to see why many people are shocked by this sort of behavior and the widely documented harms it causes kids who engage in it, and want to both deter people from engaging in it and punish those who take advantage of those people by circulating their pictures without their consent. I expect it would trouble most parents (read: potential voters) if legislatures just sat back and admitted that such behavior had the green light under the First Amendment, so the flurry of morality-based legislation we’ve been seeing over the past couple years is understandable.


Leave a Reply

Your email address will not be published. Required fields are marked *