Opinion

The insane logic of sexting prosecutions

In North Carolina, the adult perpetrator and the minor victim are the same person. Come again?

America is notorious for its brutal treatment of minors in the criminal justice system. Who can forget Lionel Tate, the 13-year-old sentenced to life in prison without the possibility of parole for killing a 6-year-old when he was 12, with what he said were wrestling moves he'd seen on television? (Years later, his sentence was overturned on appeal, and he was released on parole.)

New ground has recently been broken in the incarceration of American teens, however. Several children have been charged as adults for possessing child pornography — of themselves. Apparently, moral panic over sexting means we must entrap our children in a Kafkaesque bureaucratic sandpit before turning them into hardened criminals.

The serious sentences for child pornography (production can carry a federal minimum sentence of 15 years) make sense in the context of full adult pedophiles taking advantage of very young children. But that is clearly not the case for one 17-year-old boy in North Carolina (I won't repeat the name). He and his girlfriend were sending nude pictures to each other, but were somehow caught by police and arrested. He's facing 10 years in prison. His girlfriend was also charged with "two felony sex crimes against herself," but took a plea bargain that will allow her to avoid jail time and having to register as a sex offender.

Though this probably isn't that common, it's also far from the first time. Very recently a 14-year-old in Britain was added to a police registry for 10 years in a similar situation. In 2010, eight children between 13 and 17 years old were arrested on child porn charges, all but one pleading to a lesser charge. And in 2014, in the case of a 17-year-old boy charged with sexting his 15-year-old girlfriend, police briefly tried to execute a "search warrant" on the boy's erect penis, to be obtained by forcible injection if necessary.

Let's set aside the creepshow cops who keep conducting these weird investigations. Instead, riddle me this: How can you simultaneously be a minor being victimized by a sex criminal (yourself), and an adult violating an innocent victim (also yourself)? Surely a person is either a child, in which case he can't be held responsible for producing images of himself (or I hope at least they aren't also going to charge Subway Jared's victims); or a person is an adult, in which case sexting is not actually a problem?

I imagine some lawyer will pop up to tell me that yes, it all makes perfect sense in the context of legal reasoning and precedent. But it simply beggars belief that this isn't a violation of basic justice and common sense, if not the 14th Amendment's protection of due process. It should not be possible to be a minor for the purpose of defining the crimes that you've committed against yourself, and an adult for the purpose of jacking up the charges to a preposterous degree.

Anyway, there is a simple solution. In many states, including North Carolina, the age of consent for sexual intercourse is 16. That drops to 14 for couples who are within four years of age. That seems basically reasonable, granting what is known about normal teenage sexual development. Putting sexting in line with that framework makes sense. As psychologist Elizabeth Englander argues, teen sexting has become a regular part of adolescents' sexual development — not risk-free of course, but basically harmless.

A few other policies could be added — adding a bit to the sex-ed curriculum about responsible sexting (don't pass pictures around without permission, not cool) and a law against revenge porn as well. But when it comes to two people in a relationship, it should never be more illegal to send someone a nude photo than it is to have sex with them.

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