VT- CONSEQUENCES SERIOUS, LONG-LASTING

1-11-2009 Vermont:

When Cheryl Hanna was a prosecutor in Baltimore in the early 1990s, she and her colleagues would lament how much easier a time they’d have winning convictions in sex-crime cases if only someone had been filming the assault.

Today, authorities are in that bind less often — and many times the suspects themselves are the people behind the camera.

“I used to joke 15 years ago, ‘If only we had a videotape going, we’d know what happened.’ Now, we have the videotape,” said Hanna, a professor at Vermont Law School in South Royalton. “It provides much more opportunities for evidence for police and prosecutors.”

The increasing teenage phenomenon of “sexting” — sending explicit photos and videos to one another via cell phone, or posting the material online — carries with it potentially severe legal consequences, law enforcement and legal experts said. Also, they said, the trend might redefine judicial concepts of privacy, which could hold far-reaching implications about how Americans live their lives.

Those who ask for and receive graphic images from minors, even those in consensual, sexual relationships, expose themselves to state and federal child-pornography charges. People who photograph or video illegal sexual activity, including consensual intimacies involving at least one underage participant, risk handing to prosecutors the key piece of incriminating evidence.

Case law regarding sexting remains in its infancy, lacking guidance and legal precedents as few courts have tackled the topic. The issue presents dilemmas for law enforcement, especially prosecutors, experts said.

“This is really new territory,” said Kris Carlson, commander of the Vermont Internet Crimes Task Force, a law-enforcement agency composed of officers from multiple departments. “The legal system is just trying to keep up.”

Should government pursue felony charges against a 16-year-old boy who receives a nude photo from his 15-year-old girlfriend? Did lawmakers intend to make criminal that type of activity? Where is the line between increasingly common and acceptable conduct among teens and graphic sexual activity involving vulnerable minors?

There are no easy answers.

“The law’s pretty clear: That’s a crime,” said Chittenden County State’s Attorney T.J. Donovan, but his examination goes further. “I don’t think the intent of the Legislature was to prosecute and label 16-year-olds as pedophiles when the images are coming from a 15-year-old classmate. We have to use our discretion and our judgment. It’s a case-by-case analysis.”

A recent case

Adults are most likely to face charges when they possess graphic images of minors, including in cases where, say, an 18-year-old senior and a 14-year-old freshman are dating, experts agreed. Offenders face up to 15 years in prison for each count under state law. Federal statutes require a 15-year minimum and up to 30 years in prison for a first offense, with increasing penalties from there, said U.S. Attorney for Vermont Thomas Anderson.

A recent court case in Chittenden County brought the sexting phenomenon to the fore. Isaac Owusu, 17, of South Burlington, an athlete and popular student at the city high school, pleaded not guilty Jan. 2 to two counts of sexual assault involving girls ages 15 and 14. Authorities say he forced the older girl to perform a sex act, and committed statutory rape on the younger girl.

Court papers say both girls sent explicit photos of themselves to Owusu, using their cell-phone cameras and picture-messaging capabilities, though prosecutors said the sexting neither excuses nor mitigates the suspect’s conduct.

Donovan’s office has not charged Owusu with any crimes relating to the photos, though state or federal prosecutors could bring allegations of child-pornography possession or solicitation, or enticement of a minor.

Those who send messages also could face charges, though examples are rare. Carlson learned last week of an Ohio case in which authorities arrested and charged a 15-year-old girl this fall on allegations of distributing graphic images of herself to fellow students at her high school.

“I don’t think we would ever do that in this state,” said Carlson, who also is a sergeant with the Burlington Police Department.

Privacy and ‘perverts’

Hanna, the law professor, said the increasing prevalence of sharing sex-related material among young Americans could alter the legal meaning of privacy. The concept is based on what people considerable “reasonable,” and with more youth willing to make public more of their intimate lives, the reasonableness standard could change, Hanna said.

“One of the things that technology does is erodes the line between private and public, and that has enormous legal repercussions,” she said. “This generation has an emerging view of privacy that generations didn’t have before the Internet. Their expectation of privacy is different.”

Sexting’s consequences continue past the bounds of criminal and privacy law. A person could sue someone who takes or forwards a graphic photo without the subject’s consent, Hanna said. And experts agree that once an image reaches cyberspace, all hope of controlling it is lost.

“The days of the Polaroid, where there’s one original image floating around, are gone,” Carlson said. “The kids in schools, most of them are aware of it; many of them have engaged in it, or they know someone who has engaged in it; and they don’t think it’s that big a deal. They don’t think of the repercussions.”

College-admissions personnel or potential employers could find the images even years later; content on the Internet, Carlson warns students, “will be there forever.” Explicit photos also can find their way into other unintended hands.

“These kids have to realize that these photos they take of themselves can wind up being viewed by some 65-year-old pervert sitting behind a computer screen somewhere,” Anderson said. ..News Source.. by Adam Silverman, Free Press Staff Writer