Sexting: Application of Criminal Law to Punish Poor Choices

Kevin Ramakrishna, Albany Law School

Abstract

Sexting has become the latest form of sexual discovery for American school children, and a major source of frustration for school administrators and law enforcement. Recently, the effects of sexting have led to the death of at least one high school student prompting law enforcement and schools to distribute the harshest punishments possible. When the problem first arose there were no laws to combat sexting. In order to punish those who engaged in sexting, law enforcement used sex offender and child pornography laws. As a result, teenagers have been placed on sex offender registries and must carry the burden of being a registered sex offender on into life.

The criminal law, as it stands, is ill equipped to properly manage the sexting problem. Teens now lead lives in both the real and the virtual world. In the virtual world, consequences for poor decisions are not as clear as in the real world. Furthermore, adolescents do not have the same ability to process consequences as adults. Nevertheless, the criminal brings harsher punishment on teens for engaging in sexting than adults. A study out of Vanderbilt University raises issues about the manner in which teens make risky decisions when on the internet and show that social norms are not enforceable in the same manner as in the real world.

Due to the specific problems associated with sexting, new solutions are required. Some jurisdictions have already instituted policies to place teens caught sexting into diversion programs and off the sex offender registry. Vermont has enacted a law to meet the goal of balancing teens who make a poor decision, and those who may be sex offenders. Additionally, new technology in phones to prevent unauthorized re-texting of pictures may be useful to combat the harms of sexting. By following the guide of those jurisdictions taking the lead in this area, the harsh consequences of the criminal law will not be necessary to combat sexting.