Should Teen Sexting be The Crime It's Often Treated as?

September 13th 2015

Alex Mierjeski

The cases of two North Carolina teens accused of felony sex crimes made headlines earlier this week after they were charged as adults for privately swapping "sexts" of minors—themselves.

According to state law, 16-year-olds are considered adults when it comes to criminal proceedings. But anyone sending or receiving explicit photos of people under the age of 18 can face prosecution under child pornography laws. In the cases of Cormega Copening and Brianna Denson, that meant they were essentially facing felonies for exploiting themselves and each other.

Copening's and Denson's cases illustrated how teenagers can fall victim to laws meant to protect them, and stirred up a simmering debate over tired legal approaches to teenage sexuality in an evolving technological landscape. Various studies have shown that about one in four teens have sent or received sexts—though that number is likely much higher. Other research indicates that while a majority of teens have sent or received explicit photos on their phones before the age of 18, most are unaware of the legal consequences that can result, including infringing on child pornography laws.

These statistics add up to two potentially problematic realities: first, that sexting has become a normal facet of teenage sexual expression and experimentation, and second, that the legal framework governing the practice has the potential to do more harm than good. In Copening's case, for example, a guilty verdict would have required him to register as a sex offender, a reputation few teenagers would want to have and, in many sexting cases, deserve.

Writing on that discrepancy, Broadly's Gabby Bess pointed to a University of Michigan Journal of Law Reform article, which explained that because sexting overlaps with federal and state child pornography laws, minors are exposed to overwrought charges for sharing pictures of themselves or other minors. Bess argues that "'minors should be a protected class against which child pornography charges cannot be brought,'" and should be provided education to help them better understand the "'risks associated with sexting, without being harmed under a statute that is meant to protect them.'"

Not all sexting cases are alike.

Some cases, like the "sexting ring" at a high school in Louisa County, Virginia that was the subject of a 9,000 word Atlantic story, pose a host of consent and privacy concerns for young people who send racy photos to one another under the pretense of a private exchange. But even in those cases, it can be unclear if the offenders should be treated the same as the most egregious child pornographers.

In the interest of avoiding creating hordes of young felons, some states have clarified laws to protect teen sext offenders from being prosecuted as such. In Texas, for example, sexting is treated as a misdemeanor. But even so, teens still risk offending what the Atlantic's Conor Friedersdorf called a "moral panic" which allows 17 year olds in Texas to legally swap as many bodily fluids as they like, but criminalizes what is most often the consensual swapping of nude photos.

Back in North Carolina, Copening accepted a plea deal that lets him avoid the potential 10 years in prison for two counts of second degree sexual exploitation of a minor, and three counts of third degree sexual exploitation of a minor he was originally charged with. Denson, his girlfriend, accepted a similar plea deal and will face a year of probation without a phone, a small fine, and a class about smart life decisions.

"There are different ages for different things. You need to be 21 to drink alcohol," Sgt. Sean Swain of the Cumberland County Sheriff's Office told the Independent. "It's just the way the law is written."