OH- ACLU: 'Sexting' is not a crime

4-2-2009 Ohio:

COLUMBUS – Youths should not be treated like criminals for sending nude photos over cell phones or the Internet, the American Civil Liberties Union said Thursday.

At a Columbus news conference, lawyers from the ACLU and Ohio State University said that no Ohioan has been convicted of a felony yet, but lives could be ruined if underage youths have to register as sex offenders for sharing nude or semi-nude photos or video.

Known as “sexting,” teenagers also have been charged with pandering obscene material and other pornography crimes for transmitting or posting photos on Internet sites like Facebook or MySpace.

The ACLU of Ohio urged officials to stop prosecuting juveniles, claiming that the damage from criminal trials far outweighs the act of sexting. They sent letters Thursday to all 88 Ohio county prosecutors and members of the Ohio General Assembly, urging them not to pursue criminal charges.

Jeffrey M. Gamso, legal director of the ACLU of Ohio, said in a Pennsylvania case involving teenagers wearing bras, the pictures “could have been on the 6 o’clock news – it was nothing close to pornography.” Last week, the ACLU successfully filed suit in the Pennsylvania case and a federal judge temporarily blocked a prosecutor from filing felony child pornography charges against the teens.

Gamso doesn’t support reducing the charge for creating, exchanging or possessing nude photos to a first-degree misdemeanor – as proposed last week by state Rep. Ronald Maag, R-Lebanon. There are plenty of consequences outside the courtroom for youths who make mistakes, Gamso said. And anyone 18 and over can send the same photos to one another and not be charged, he said.

Instead, Gamso urged Ohio and other states to respond with education programs in schools rather than through the court system. Courts should not be involved unless someone feels personally damaged and then should file a lawsuit, he said.

“It turns out there are permanent records,” Gamso said, and some charges for sexting are subject to 20 years of registering as a sex offender. “Schools find out, jobs find out – this haunts them,” he said.

Gamso said child pornography laws “were not designed to cover this sort of activity (but) those who would prey on them. . . I don’t think it’s a crime.”

“What we don’t need to do is prosecute children for making mistakes. Children do foolish things and the remedy against foolish things is not criminal action,” Gamso said. “Local officials are twisting the law to prosecute those they were meant to protect. A conviction for sexting can do far more than teach a lesson – it can ruin a life.”

One recent case was prosecuted in Mason when nude photos of a 15-year-old girl were found on a freshman boy’s cell phone. Both teens were charged with misdemeanor counts of contributing to the delinquency of a minor. And in Middletown last month, a 13-year-old boy was arrested on a felony charge after officials at Stephen Vail Middle School found a sexually explicit image of an eighth-grade girl engaged in sexual activity on his cell phone.

Ohio’s policy toward sexting is not unique, but it is still contrary to neuroscience research, said Katherine Hunt Federle, an Ohio State University law professor and director of the Justice for Children Project.

Juveniles think differently, Federle said. Teens’ brains are underdeveloped and rely more on a “gut instinct” compared to adults, she said.

The underdeveloped teen brain hampers the efforts to effectively punish teens, she said.

“Juveniles who commit sexual offenses do not manifest sexual disorders in the same way that adults do, and even those who might engage in what we could characterize as sexual deviance do not necessarily manifest persistent and entrenched deviance over time,” she said. This makes it difficult to diagnose any child as a sex offender.

Tier I is the lowest sexually oriented classification in Ohio, and that requires registering for 10 years – an alarming number to Federle.

“Juveniles do not pose that community threat that we seem to associate with sex offenders,” she said.

“What we’re doing is we are using these laws like ‘Scarlet Letter’ laws, and they’re going to follow these kids around for years,” Federle said. “It will make it difficult for them to go to college, to get a job, to be a member of the community.” ..News Source.. by Jon Craig and Tom Knox