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The difficult problem of teen sexting and child pornography laws

We have previously written about the dangerous intersection between modern technology and sweeping child pornography laws written before such technology existed. Specifically, the legal perils of teenage sexting.

Laws against child pornography were largely written before the era of cellphones, as well as the digital cameras they contain. They were written primarily to prosecute adults who sexually abused and exploited children. But there have been numerous cases in which teenagers in a relationship were charged with producing and possessing child pornography for taking nude selfies and sharing them with someone else. These teens were considered the victims as well as the perpetrators in these "crimes."

To be sure, sexting can be highly dangerous; leading to public humiliation and worse. Therefore, it's not a good idea - especially for teenagers who have not yet reached legal adulthood. But should teenage sexting be charged under child pornography laws? Should it even be a crime in the first place?

A recent article in the New York Times offers some interesting arguments. Because the consequences of a child pornography conviction are so severe, some states are considering or have enacted laws that specifically punish teen sexting as a lesser offense with lesser penalties.

This may seem like a reasonable response to the problem. But consider the likely consequence: Prosecutors may feel free to bring charges against more teenagers. When the only option was harsh child pornography charges, most prosecutors would think twice about bringing charges. With "lesser" laws, however, that self-restraint may disappear.

According to the author of the Times article, the best solution to the teen sexting problem (from a criminal justice perspective) would be to amend the laws using statutory rape laws as a model. Many states have laws that exempt teenagers who are close in age from statutory rape charges for having consensual sex with one another. These same "Romeo and Juliet" laws could potentially be applied to teen sexting as well.

It is important to note that while many states do have Romeo and Juliet laws, Wisconsin does not. As such, consensual sex between minors can be prosecuted in certain cases.

There may be significant and legitimate disagreement about whether sexual activity among teenagers is morally right or wrong. But we need to be very careful about how we apply morality to our laws. Criminal charges can ruin a young person's future. Except in rare cases, teen sexting does not seem to warrant such serious consequences.

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