The Challenge of Finding a Proper Reaction to “The Sexting Problem”

When one is faced with a problem, choosing the proper course of action is critical.  Often, our reactions can be too quick, too harsh, or disproportionate.    If the car slides to the left, we overcompensate and jerk the wheel to the right.  How many times has your initial response caused more damage?  The lesson:  a hasty reaction is not the most effective.    

Consider this lesson in the criminal case of an assault and self-defense.  If person A punches the face of person B, person B has the right to react in self-defense.  That right, however, is not unlimited.  It must be a proportional response aimed to repel the attack.  It ceases at the moment the attack stops.    An action demands a reaction that is proportionately and justly applied.  

Sexting demands a careful reaction by all involved , including schools, parents, and law enforcement.  If law enforcement applies a disproportionate level of power, it can cause serious long-term, legal consequences for the children caught up this new trend.

Michigan law does not, presently, provide effective means to address the issue of sexting.  Clearly, there is a wrong there to be deterred and possibly punished.  The challenge is how to do this appropriately for those young people and their families involved. 

Presently, the criminal offense being used is MCL 722.675.  This four year felony punishes offenders sending to a minor under the age of 18 sexually explicit images.  This offense was clearly developed to address predatory adults soliciting  or sending  pornographic images.  The law was created to address a legitimate concern, but is now being inappropriately applied to  the teenage problem of sexting.   The result is that kids are being turned from victims into defendants.  

Another offense being used MCL 750.145c, which is a 7 year felony with Sexual Offender Registration Act application under MCL 28.722 as a Tier 2 reporter.

Due to the advancement of technology, “sexting” has gained a great deal of attention.  Sexting is generally  defined as the digital exchange of sexually explicit images between teenagers, using text messaging services on camera-equipped cell phones.  There is, however, “a stark disagreement over the appropriate societal response underlies the popularity of sexting.” [1]

Again, there are obvious positive reasons to criminalize such conduct.  There is the possibility that digital images privately shared between teens will be disseminated to broader online audience. This may profoundly affect the participants, causing humiliation at school, pressure at home, and the loss of employment or college prospects.[2] It can be used as a tool for harassing and bullying.[3]  However, harsh reaction to treat all cases as criminal raises a significant question where both are willing participants and the victim is actually treated as an offender.[4]

For instance, take a case where a teenage boy lies to two girls.  He tells them each he is in love with them and they are his true love.  He then begs each of them for explicit selfie photographs.  They, thinking like young kids do, give in and send the pictures.  The boy, then distributes them to his buddies. If the boy had been 17 years old, he would be charged and the girl treated as a victim.  If it involved an act of sexual inter course and the boy was over 17, it would be treated as statutory rape and the girl the victim (even if she gave actual consent and not legal consent).   Yet, we are seeing situations where prosecutors are making the victim the defendant.   [I am not following here who you are saying is the victim and defendant]

Consider Criminal Sexual Conduct in the Fourth Degree under MCL 750.520e.  The law punishes sexual contact between teens unless they are over 13 years old and within 5 years of each other.  The point is that the legislature recognizes there is some youthful indiscretion that may arise between teenagers.  The rule would be different if the acts were perpetrated by an adult seeking to exploit a minor. 

The initial policy objective is based on the government interest in preventing child sexual abuse and child pornography. We must reach a balance between this and  understanding extent to which the digital revolution has changed how teenagers communicate and interact while still growing up and learning to make choices.

The subject brings up interesting issues of First Amendment rights.  While clearly, and for good reason, child pornography is not protected free speech, there are cases that say “statutes that suppress speech will ordinarily have to be justified by a purpose to prevent acts that are not merely harmful, but are harmful enough to be crimes.”  Ashcroft v. Free Speech Coal, 535 u.S.234, 250-51 (2002).  To infringe on one’s First Amendment rights, there must be some outweighing state legitimate interest.  Is there a legitimate state interest to stop the exchange of voluntary self images between consenting teens as compared to the obvious and well-accepted interest of harm resulting when child pornography is exchanged, created, or solicited between a minor and an adult?  Does using MCL 722.675 to punish sexting protect against the harm intended by the statute or others like it? Criminalizing child pornography is to prevent the exploitation of children; however, was it the intent for MCL 722.675 to apply to teenage sexting?

This brings us to a small but important point of privacy rights.  How often are courts seeking to criminally punish children involved in what is, in effect, consenting sexual intercourse or other acts between two young naive children of the same age?  The point here is that such application of laws when the circumstances don’t involve adult perpetrators or criminal intent warrants caution against assigning severe penalties and proceeding , such as in the typical sexting case.  It denies the parent and family the opportunity to deal with it internally and responsibly and it subjects a young victim to emotional trauma.

It is at this point, we must go back to talk about the policy of proportionality.  Assigning sex felony charges to teens that produce and distribute provocative images of themselves disproportionally vilifies the underlying behavior, which in many instances is legal sexual activity.  By this, I mean if these were two adults sending photographs between themselves, it would be legal activity.  If  it had been actual sexual contact, it would have been legal activity.  If it had been an exchange of sexual language, it would have been legal activity.  However, while sexting is a significantly important issue in today’s world, and while it may potentially be criminal in some situations, criminalizing the activity as a felony level offense intended to target adult perpetrators is a gross overreaction. 

Here are two recent real world examples:

1.  Recently, a shy young girl, with good grades and no disciplinary record, gave into the ploys of a begging boyfriend and sent an explicit photograph of herself. The prosecutor said “we cannot trust parents to handle this appropriately.”  

2.  In another recent case, where a handful of boys had received explicit images from willing young girls, the prosecutor told the parents “we intend to place the kids on probation for two years, after which the cases will be dismissed.”  That seems generous on the surface, however, what is also being said?  That the prosecutor knows it is not trial worthy?  That this prosecutor thinks the parents cannot respond well enough?  That it is worth your family spending thousands of dollars, two years of probation appointments, and random checks with the court?  That it is worth branding the kids in the mean time with a sexual related offense?

Admittedly, we may be called on to defend clients; however, each of us at the firm have children and/or grand children.  We too are members of the community.  The intent here is not to criticize the law enforcement – be it the police or prosecutor.  The point here is that as officers of the court, as parents, and as a community, there is problem to address together.

So, what is the answer to the problem?  First, start with the legislature and draft appropriate laws to address the act.  Second, work with parents and schools.  Scare lectures to an auditorium is not enough.  This is a team issue and needs a team approach.  Third, apply the force of law enforcement judicially from the outset.  Employee prosecutorial deferral and don’t seek just any or every case to use to send a message of deterrence.  Regardless of all ideas, the key to the solution is, as with most social challenges, to address it actively as parents at home – the family.  Talk to you children.  Monitor their social media.  Install apps on their smart devices that permit you to track their usage and exchanges.  Then, if a case does garner the involvement of law enforcement, then law enforcement should work with parents, use prosecutorial deferral tools to hold on to the file, not prosecute, and work with parents and schools to see if the child learns his or her lesson.

Parents, with all that is increasingly out there for our children, there is even more  reason for you to be involved.  Each of the attorneys at our firm is a parent, some a grandparent.  Be involved, because if you are not and your children get involved in this issue, the legal ramifications can be heavy.  

[1] Elizabeth C. Eraker, Stemmy Sexting: Sensible Legal Approach to Tennagers’ Exchange of Pornography, 25 Berkeley Tech, 555.556 (2010).

 [2] Id at 557.

 [3] See Generally State Board of Education Model Ant-Bullying Policy (2010); see also

 [4] See Generally Joanne R. Lumpe, A Victimless Sex Crime: The Case For Decriminalizing Consensual Teen Sexting; 46 Univ. of Mich. J.L. Rev., 703-736 (2013).