UT- Who's responsible for 'sexting'?

2-6-2009 Utah:

Utah parents have been stunned to learn of the newest, and strangest Internet phenomenon -- "sexting" -- which is the use of a cell phone to "text" nude or sexual images to friends or acquaintances.

That's shocking, all right. But should it be a crime in all cases?

Current Utah law makes the distribution of certain kinds of sexual images a third-degree felony. The penalty applies to anybody with respect to material deemed "pornographic" or "harmful to minors."

But should that apply to juveniles in this new, bizarre fad? And if not, what should apply?

Lawmakers are trying to craft an updated law in response to parents who feel that a felony for sexting is too harsh. Rep. Sheryl Allen (R-Bountiful) introduced HB-14, which amends current law to reduce first offenses by teenagers from felonies to misdemeanors, with repeaters subject to felonies. It's something like Utah's stalking law.


But what is notably absent in HB-14 is any provision that looks beyond the age of the perpetrator to his or her intent. Not all situations are created equal.

As it stands now, Allen's bill narrowly parses penalties according to age, making them lighter for younger kids in an effort to help them get counseling through the court system. Someone younger than 16 gets a Class B misdemeanor for texting sexual material. A 16- or 17-year-old gets something tougher -- a Class A misdemeanor. Any repeat offender gets a third-degree felony.

Do such fine nuances based on narrow age differences really make sense? Is there a meaningful difference between a 15-year-old and a 16-year-old? Probably not.

Or a broader question: Should sexting by a juvenile ever reach criminal court at all? It may be argued that the offense generally doesn't rise to criminality, and that civil remedies with monetary damages attached should be sufficient to quell the problem.

Parents should be involved. What better way to accomplish that than by aiming at their bank accounts?

Make no mistake: sexting is a disturbing trend across the nation, and Utah is not immune. Last year, the Davis County attorney investigated 28 teenagers from five junior high schools and three high schools.

It's true that a teen who snaps a nude photo of another teen (a boyfriend or girlfriend, for example) and then shares it with others has seriously invaded the subject's privacy. But that's just one level of analysis. Contrast it with the many cases nationally of teens who willingly send nude pictures of themselves to willing recipients. There may be mutual exchanges of images -- even one-upmanship on the crude photo scale.

The difference lies not in the age of the perpetrator but upon his or her intent, both in sending and in receiving or possessing. It's wrong, but juveniles cannot be expected to get it the first time around, and maybe not even the second or third.

This is the weakness of HB-14 with respect to juveniles. It doesn't differentiate any levels of dastardliness in deeds themselves, nor does it include any adjustment for intent. It merely punishes according to age, which is arguably a poor standard.

Whereas with adults it's reasonable to punish the transmission or possession of sexual images involving children in a blanket fashion (adults know better), other nuances ought to be considered in the case of teens communicating with their peers.

We venture to say that most teens who exhibit unbelievably poor judgment ("I'll show you mine if you show me yours") with respect to photo messaging are not sexual predators. Much of this seems more akin to sexual harassment in the workplace. But sexual harassment isn't even defined in Utah statutes. It's typically addressed as a civil matter.

Some other parallels with respect to youth include underage smoking, drinking and most driving offenses. These are typically misdemeanors, and they're arguably as harmful as lewd pictures.

Moreover, there's something inconsistent in assigning criminal punishment -- even a felony -- for pictures, but little more than a finger-wag for juveniles who have real sex. Sure, it's against the law, but it's virtually never prosecuted.

But if juveniles are not charged with felonies on second offenses for smoking or drinking -- or even for having sexual relations with each other -- it seems hard to justify a felony for a repeated exchange of pictures.

A case can be made that the criminal justice system should not be engaged when other solutions are available. Steps might be taken, for example, to encourage more active participation by the proper stewards -- parents. It wouldn't hurt to hold their feet to the fire.

As one expert noted, parents can take steps such as manually checking their kids' cell phones from time to time. If kids don't like it, they can give up the phones. Cell phone providers could improve their services to include a duplicate message to parents of text or photo messaging -- for a fee, of course.

One way or another, parents should be on the hook. After all, when parents give a child a cell phone, don't they implicitly give the child permission to access everything the phone can deliver? If they then fail to monitor their kids' activities, should they not be found negligent? ..News Source.. by Daily Herald