VT- Legislature considers legalizing teen 'sexting'

4-12-2009 Vermont:

Bill would exempt teens from child-porn laws for consensual image exchange.

Vermont’s Legislature is considering a bill that, if approved, would make the state one of the first in the nation to grant legal protections to teenagers who send sexually explicit photos and videos to one another with their cell phones.

The law change is receiving widespread support from prosecutors, defense attorneys, law enforcement, women’s groups and others. Still, some advocates are questioning whether the proposal crosses the line between legalizing a common practice among teens experimenting with sexuality and protecting predators who target and exploit youngsters.

The practice of exchanging graphic images, a rising trend among high school and even some middle school students known as sexting, in many cases runs afoul of child-pornography laws because of the participants’ ages. Recent national news reports about the topic have shared stories of youngsters — senders and recipients — who were brought to adult courts on felony charges, have been convicted and called pedophiles, and whose names will be included on sex-offender registries for years.

In Vermont, too, at least one teenager, a former South Burlington High School student, is facing charges related to sexting.

(eAdvocate Post)

Almost concurrently, though, the state Senate earlier this month endorsed a proposal that carves out a sexting exception to child-pornography statutes. The exemption covers only the consensual exchange of graphic images between two people 13 to 18 years old; other conduct would remain a crime.

The bill now moves to the House, where the Judiciary Committee plans to begin taking testimony this week.

Lawmakers, enforcement authorities and advocates said the bill avoids condoning sexting but shields children from inappropriate criminal charges.

“This isn’t an issue of whether it’s a good thing or a bad thing — I think it’s wrong — but the question is, do we want kids to be prosecuted, called sex offenders, etc., etc., for consensual conduct? No,” said Sen. Richard Sears, D-Bennington.

The Judiciary Committee, which Sears chairs, unanimously endorsed the measure, S.125, a broad bill that includes several provisions relating to sex-crime laws, prison policies and other topics.

Time has come, advocates said, to align law, technology and teenagers’ use of it as they begin exploring their sexuality.

“They’re doing it,” Chittenden County State’s Attorney T.J. Donovan said. “We don’t want to condone it. We need to educate. But there’s no public interest in labeling them as sex offenders for engaging in a perverted, albeit new, form of courtship.”

The prosecutor offered an example: If a 14-year-old girl “flashes” her 18-year-old boyfriend while the two are in the same room, but the couple refrain from sexual contact, no crime has occurred. Why, then, Donovan wondered, should either partner face child-porn charges if the girl snaps a nude picture of herself and sends it via cell phone to her boyfriend?

“The technology makes it the crime,” Donovan said. “The act here is sending the photo. There’s no sexual act performed.”

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Age-related concerns
The leaders of two advocacy organizations, the Vermont Network Against Domestic and Sexual Violence in Montpelier and the Women’s Rape Crisis Center in Burlington, said last week they agreed with the rationale behind the bill but questioned the wisdom of the five-year age gap.

“With sex crimes there’s often a power differential between the perpetrator and the victim,” said Cathleen Wilson, executive director of the Burlington center. “There’s a canyon, a huge power differential” between a 13-year-old and an 18-year-old, she said.

Karen Tronsgard-Scott, director of the Vermont Network, shared her counterpart’s concerns but noted the legislation remains under consideration, and lawmakers could alter the proposal. She supports S.125 generally, she said, because the current law needs changing.

“The reality is kids in middle school and high school are sexting each other, and that’s what the Legislature is looking at,” she said. “A young person could get into significant trouble and get charged with a serious crime.”

Sears said his committee chose the age range to coincide with students in late middle school through high school — groups that often interact and form relationships. The law would continue to punish sexting committed through force, coercion or other pressures, and prohibitions against voyeurism still would apply, Sears said.

Also, passing along images to others would remain a crime.

The gap in ages creates a “fine line between someone who’s out there being a sex offender and just high-schoolers being high-schoolers,” said Lt. Art Cyr, director of the Chittenden Unit for Special Investigations. He agreed that garden-variety sexting should be exempt from child-pornography laws but worried the age range could make legal explicit interactions between a university freshman and an eighth-grader.

“When you’ve got a college student who now could have some kind of contact with a 13-year-old middle-school student, to me that’s a crime,” Cyr said.

Sears said he is open to changes the House might make regarding the age range. One idea he floated in an interview last week was to keep the ages the same but add a requirement that the participants be no more than three years apart.

The chairman of the House Judiciary Committee, Bill Lippert, declined comment on the substance of the bill last week, saying he had yet to spend significant time reviewing the measure. He said testimony would begin this week on the comprehensive legislation, including the sexting provisions.

Lippert, a Hinesburg Democrat, also declined to say whether he would attempt to pass the law this year.

Authorities would continue to investigate if an incident comes to their attention even if the law passes, Cyr said.

“It all hinges on consent,” he said. “We’re still going to have to look into them and take each one on its own.”

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Education first
The Vermont criminal case involves Isaac Owusu, 18, of Morrisville, who pleaded not guilty to allegations he forced two teenage girls to send him explicit photos and videos. Owusu, who also has denied sexual-assault charges involving two other girls, faces up to life in prison if convicted.

Prosecutors claim Owusu, a senior at South Burlington High School, directed the girls via instant-messaging computer programs to perform sex acts on themselves, photograph or videotape the acts, and send the recordings to him.

The defense counters the girls participated willingly.

Owusu’s court-appointed attorney, Leroy Yoder, declined comment about the case but said he supports changing sexting-related laws. The current system, where young people can face severe repercussions for sexting, is well-intentioned but flawed as technology has outpaced the law, Yoder said.

“You can understand they’re trying to protect children, but at the same time they’re harming the very people they say they’re trying to protect,” he said.

Yoder and Donovan, the prosecutor, agreed the age range the new law covers should overlap with high-schoolers.

“It seems ridiculous to hold someone criminally responsible for an otherwise mundane act, essentially adolescent exploring but using technology,” Yoder said. “You’re not going to stop young people from being sexual. The best thing you can do is educate them to the dangers.”

Those dangers, experts said, include losing control of graphic sexual images the moment a teenager presses the “send” button. Once in cyberspace, images and videos are likely to remain in the public domain for years, showing up, say, when a college admissions counselor or potential boss runs a person’s name through Google.

“We don’t want to normalize it so much that it falls off our radar as parents and educators,” said Wilson, of the rape crisis center.

The solution, advocates said, shouldn’t be punishing teens but instead raising their awareness of the ramifications. ..News Source.. by Adam Silverman