Is there a sex-positive approach to teen sexting?

It seems like not a week goes by without yet another news story about the prosecution of teens for exchanging sexual selfies, otherwise known as sexting. The latest high profile case involves twelve Virginia students who are facing felony charges for sharing nude pictures of each other. But as serious as this is for the students involved, it pales in comparison to other similar cases, such as the arrest of 1000 teens in Denmark on child pornography charges, and numerous cases in which teens in dating relationships have been prosecuted for consensually exchanging sexts only with each other.

This is no longer a new problem. It was as long ago as 2001 — before some of these kids were even born — that the Supreme Court of Canada ruled that 12–16 year olds who could lawfully have sex with each other could not be prosecuted for consensual sexting, provided that the images or videos were for their personal use only and were not distributed further. Canada has since passed an omnibus law on sexting that also deals with cyber bullying and revenge porn, and a number of other countries and individual U.S. states have followed suit.

Yet at a national level, the United States has not begun to decriminalize consensual teen sexting, and indeed is headed in the opposite direction. A bill before the current Congress, the Protecting Against Child Exploitation Act of 2017, would make teens who were caught sexting subject to a minimum 15 year jail term. That Bill has already passed the House, and there is a real risk of it passing the Senate too, on the wave of sex-negative sentiment that recently saw the bipartisan passage of the harmful FOSTA-SESTA law against sex workers and Internet platforms.

Sexting Isn’t Abuse

To be clear, when older adults exchange sexual photographs or videos of teens with whom they are not in a lawful sexual relationship, that is a form of sexual abuse. When those images are distributed to other adults without the subject’s consent, or are used to bully or blackmail their subject, the offense is aggravated further, and the law should provide severe penalties against such acts — which it does.

But when teens consensually exchange such images or videos with their own age-appropriate relationship partners, this is developmentally normal sexual behavior. At least one in seven teens are sending such sexts, and one in four is receiving them, and surprisingly both sexes participate equally in doing so. There is no reason why consensual teen sexting of this kind should be criminalized at all.

That doesn’t mean that we should do nothing to protect teens against the public health risks associated with sexting, but this should focus on education about the risks of the misuse of images or videos that have been sent through sexting, and the enforcement of laws against such misuse, especially when conducted by adults.

Romeo and Juliet

A common misunderstanding when we talk about consensual teen sexting is that those who are under 18 years of age are unable to legally consent. But this isn’t always true. In many states and countries, the age of consent is subject to close-in-age exceptions, which are often known as Romeo and Juliet provisions.

In the United States for example, the general age of consent for sex is either 16, 17, or 18 depending on the state. Once a teen reaches that age, there is no stipulation about how much older their partner can be. But in some states, minors who are younger than the general age of consent can also consent to sex with a partner who is close to their own age.

Logically, you might expect that the same age of consent laws, including any Romeo and Juliet provisions, would apply to sexting just as they do to sex, but that often isn’t the case, causing the absurd result that teens who can legally have sex are charged with producing child pornography simply for photographing their own naked bodies.

Sexting Laws are Confusing and Inconsistent

Sexting laws can be used to address this problem. A 2017 survey [PDF] lists 23 states with specific sexting laws, and 6 others including the District of Colombia with provisions in their child pornography laws that protect teen sexters in certain cases.

An example is Colorado’s sexting law, which is one of seven state laws that also incorporates a Romeo and Juliet provision. It allows a juvenile to receive and possess an image of another juvenile who is within four years of their age, or is over 14, with that person’s consent. If they receive an image that doesn’t meet these standards, they won’t be held responsible provided that they promptly destroy or report it. They can also send an image of themselves under similar conditions.

In other states, additional conditions may be imposed; for example in Indiana, the parties involved in sexting must also be in a dating relationship, and in addition to the same four year age difference that applies in Colorado, the oldest party must also be under 22 years old (although, perversely, Indiana’s Romeo and Juliet provision for sex maxes out at a different age; 20 years old).

In some cases, sexting laws don’t decriminalize sexting altogether, they merely apply a lesser punishment than would otherwise be applicable, such as a misdemeanor offense (as in Texas, for example). But this isn’t a good approach, because if a teen convicted of a misdemeanor where registrations was not required moves out of state (for college or work) to a state that does require registration, they are now a public sex offender who must abide by all the legal restrictions, regulations and guidelines.

A better approach, if punishment is to be applied at all, is for this to be a form of informal punishment such as community service (as in Arkansas), which would leave the teen with no criminal record and no need to register as a sex offender, in or out of state.

Distribution of Sexted Images

More serious penalties apply, and rightly so, where sexted images or videos are distributed without the subject’s consent, and especially where they are distributed by or to adults, or are used to bully or blackmail the subject. The distribution of such images is not the same as sexting, and should not be treated in the same way. But even in these cases, the age of the offender is relevant to the scale of the legal response.

Where a minor distributes selfies of a person of similar age without consent—such as a 14 year old boy who was recently charged with felony distribution of child pornography for distributing photos of a classmate—it would be more appropriate to treat this as a privacy violation. The act is a serious one, but it ought not to result in a juvenile facing the possibility of jail and registration as a sex offender.

The same considerations do not apply when an adult, who is not in a lawful relationship with the subject of a sexting image or video, distributes or posts it online; in this context, the adult is unequivocally engaged in the distribution of child sexual abuse imagery. And the sexual grooming of minors with the objective of procuring such imagery is a separate criminal offense; indeed, according to a study just released by the Internet Watch Foundation (IWF), most new child sexual abuse imagery is produced in this way. The kind of sexting law reforms being discussed here would in no way weaken these existing laws against sexual grooming.

Encouraging Safer Sexting

Although teen sexting shouldn’t be a criminal issue, the risks that it presents means that it is still a valid topic of concern for parents and teachers. Most minors who sext are unaware of the legal consequences, and may also underestimate the social and psychological consequences of sending intimate images that they may later regret. Sex education programs should inform teens of the risks that sexted images and videos might be shared without consent, and that these images could remain online even into their adulthood.

Teens should also be given support in resisting peer pressure to send sexual images to their peers, and should be strongly discouraged from sexting with online chat partners whom they haven’t met in person, which is a particular risk when using apps like Kik that easily allow contact from strangers.

There is no technological solution that can completely eliminate the risk of sexted images and videos being saved and shared, so it is always wise to assume that anything that you send in a sext will be kept by the recipient, and might be shared with others. Although there are apps that allow for ephemeral or disappearing messages and those that inhibit screenshots being taken (the table below explains some of these), there is nothing that can be done to prevent someone from using another device to take a photo or video of their screen. Therefore, sexting always entails a degree of risk, and teens should be made aware of that.

A Sex Positive Approach to Teen Sexting

A sex-positive approach to teen sexting means not shaming or criminalizing teens for sexting with their peers, but ensuring that they have accurate information about the risks of doing so, and about how to manage and minimize those risks.

And if things do go wrong and their images or videos are shared further than they intended, they need to be able to obtain support, without the risk that a rogue District Attorney on a moral crusade will send them or their partner to jail and have them registered as a sex offender, possibly for life.

These problems can be fixed by amending existing sexting or child pornography laws, without the need for a new federal law. Indeed, the only federal law currently on the table, the Protecting Against Child Exploitation Act, would make the problem far worse. What’s needed are the following simple state-level reforms:

• The age of consent for sex and for sexting should be harmonized at the same age. But in both cases, teens should be able to avail of an equivalent Romeo and Juliet provision, so that they are not criminalized for sexting with a partner with whom it would be lawful for them to have sex. This is particularly important in states where the general age of consent is 18, in which all juvenile sexting is currently illegal.
• Penalties for the distribution of sexted images or videos without consent should not be treated as a sexual offense if the offender is a minor. The law should treat this as a privacy infringement, and the offense should not involve registration as a sex offender.
• The best approach to harm minimization is to ensure that sex education programs include modules on the legal, social, and psychological risks of sexting, including resisting peer pressure, and some sensible technical measures that teens can follow to make sexting more safe.