Keeping Up with Technology: Why a Flexible Juvenile Sexting Statute Is Needed to Prevent Overly Severe Punishment in Washington State

By McEllrath, Reid | Washington Law Review, October 1, 2014 | Go to article overview

Keeping Up with Technology: Why a Flexible Juvenile Sexting Statute Is Needed to Prevent Overly Severe Punishment in Washington State


McEllrath, Reid, Washington Law Review


INTRODUCTION

In 2008, a Pennsylvania District Attorney called a meeting with a number of teenagers and their parents in the community.1 The topic of discussion was a serious and sensitive one-child pornography. The District Attorney informed the parents and teenagers that sexually suggestive images of some of the teenagers were found circulating via cell phones among the local schools. The parents, worried about their children, asked to see the pictures. The photos showed the teenage girls in training bras, towels, and bathing suits. One parent tried to account for the pictures, saying the girls were simply being "goofballs."2 The District Attorney disagreed and threatened prosecution, calling the pictures sexually suggestive.3

That same year, a teenage girl in Ohio sent nude images to her boyfriend.4 Soon after, the two broke up.5 When the ex-boyfriend decided to share the images with some of the other girls at school, the group began to harass the girl.6 Other students who found out about the pictures started calling her a "whore."7 She began to skip classes to avoid the harassment.8 In an attempt to alert others of the effects of such bullying, she went on a television station to tell her story.9 Unfortunately, the harassment continued, and two months after the interview, the girl committed suicide.10

The media attention these stories received,* 11 along with others like them,12 illustrates the complexities of addressing the growing problem of juvenile sexting. Sexting is commonly considered "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet."13 As cellular phones expand their capabilities and become more ubiquitous among teenagers, prosecutors in many jurisdictions face the predicament of charging teenagers with overly severe child pornography crimes.14 Unfortunately, most state legislatures have not given this problem the attention it deserves. As of publication, only twenty states have enacted laws exempting juvenile sexting from the harsh punishments of child pornography.15 This leaves teenagers in many states, including Washington, subject to child pornography laws.

This Comment examines the legal dilemmas brought on by juvenile sexting and proposes a statutory alternative to Washington's current approach. Part I provides background information on juvenile sexting and cyberbullying before discussing empirical data on juvenile immaturity. Part II explores legislative and prosecutorial responses to juvenile sexting and cyberbullying. Part III discusses the need for a change in Washington's current statutory scheme, arguing for a two- tiered statute that separates non-malicious juvenile sexting from malicious juvenile sexting. It further argues that neither tier should be subject to sex offender registration. This approach would more effectively account for juvenile immaturity, while still providing the means for punishing malicious sexting in cases like cyberbullying.

I. THE RISING PROBLEM OF JUVENILE SEXTING

Cell phones have become ubiquitous and studies show that juveniles are sexting.16 A 2013 study found that seventy-eight percent of teens between the ages of twelve and seventeen have a cell phone.17 Further, surveys have shown that up to twenty-eight percent of teenagers have sent a sexually suggestive or nude photo of themselves.18

Advances in cell phones and cell phone applications have made it easier to send and receive sexually explicit images. Camera phones and smart phones are no longer a luxury, but are now the norm. With camera phones, users have the freedom to take pictures at any time without the inconvenience of carrying a separate camera. Smart phones can access the internet, providing the additional option of posting images to a websites and social networks. Smart phone users can also download phone application software like Snapchat,19 an application that facilitates the sexting phenomenon by providing users a sense of security that images will be destroyed rather than saved by the receiver and shared with others. …

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