Sexting, Schools, and Law Enforcement: Where Does Child Protective Services Fit In?

By Pollack, Daniel | Policy & Practice, December 2018 | Go to article overview

Sexting, Schools, and Law Enforcement: Where Does Child Protective Services Fit In?


Pollack, Daniel, Policy & Practice


Sexting. You won't find the word in any 20th century dictionary. A combination of "sex" and "texting," sexting is the exchange of explicit pictures via cell phone. Sometimes the photographs are shared voluntarily. Often, an element of coercion is present. In either case, once the photographs are sent, they can subsequently be used to embarrass, intimidate, or bully.

Rate of Sexting Among Youth

Particularly among adolescents and even pre-teenagers, sexting is a relatively recent phenomenon. In a 2017 study of a private high school, researchers found that 15.8 percent of males and 13.6 percent of females sent sexts; 40.5 percent of males and 30.6 percent of females received them. (1) A 2016 study in the Journal of the American Academy of Psychiatry and the Law found that the rate of "minors who have sent sexual images range from 4 to 25 percent, depending on the age of the youths surveyed, the content of the messages and other factors." (2)

Legal Implications

From a legal vantage point, sexting may violate child pornography laws, possession and distribution laws, obscenity statutes, and other offenses. (3) The resulting severe penalties may include prison terms, fines, require the offender to formally register indefinitely as a sex offender, and cause the offender future high employment hurdles. Sexting may also trigger issues regarding the rights of parents to raise their children as they see fit, and may implicate other First Amendment free speech and free expression concerns.

Depending on many factors, sexting can simultaneously be an issue for parents, schools, law enforcement, and child protective services (CPS). For instance, exactly what was the nature of the material or text message that was sent or received? How well did the sender and receiver know each other? How many sexting messages were sent? Over what period of time were the messages sent? Did one party indicate they wanted the sexting to cease? Is there clear evidence or even an inference of sexual offending?

Certainly there is no sense in prosecuting every consensual sharing of a photograph between two children of a similar age. That said, at what point does a child's normal curiosity and desire for sexual experimentation lead to societal intervention? Should every report of sexting to school authorities necessarily involve law enforcement and CPS? If not, are there clear protocols that offer guidance? In many states there may be legal defenses for minors charged with possessing or transmitting sexual depictions of other minors. For instance, if the visual image was shown only to the defendant or if the minor depicted in the image was no more than two years older or younger than the defendant and they were in a dating relationship at the time of the offense, there may be an absolute defense.

Many states still have no specific law regarding sexting as it applies to minors. Others have addressed it. One state that has is Nevada. Its statute, NV Rev Stat [section] 200.737 (2017), provides that:

"1. A minor shall not knowingly and willfully use an electronic communication device to transmit or distribute a sexual image of himself or herself to another person.

2. A minor shall not knowingly and willfully use an electronic communication device to transmit or distribute a sexual image of another minor who is older than, the same age as or not more than 4 years younger than the minor transmitting the sexual image.

3. A minor shall not knowingly and willfully possess a sexual image that was transmitted or distributed as described in subsection 1 or 2 if the minor who is the subject of the sexual image is older than, the same age as or not more than 4 years younger than the minor who possesses the sexual image. It is an affirmative defense to a violation charged pursuant to this subsection if the minor who possesses a sexual image:

(a) Did not knowingly purchase, procure, solicit or request the sexual image or take any other action to cause the sexual image to come into his or her possession; and

(b) Promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency or a school official, to access any sexual image:

(1) Took reasonable steps to destroy each image; or

(2) Reported the matter to a law enforcement agency or a school official and gave the law enforcement agency or school official access to each image. …

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