By David Rittgers
As my colleague Tim Lynch pointed out in this post, the Third Circuit recently upheld an injunction against a prosecutor who threatened charges against teenagers who engaged in “sexting.” A conviction would have turned these minors into registered sex offenders for flirting via cellphone. Professor Eugene Volokh has more on the decision.
“Sexting” is sending an explicit photo of yourself to your significant other, and is an increasingly common occurrence with high school–aged teens. It’s dumb — those digits don’t ever go away, and they can come back to embarrass you — but it shouldn’t make you a sex offender.
Unfortunately, the laws don’t reflect this sensible distinction between poor teenage judgment (but I repeat myself) and intentional criminality. I don’t think this guy is a threat to society, but he’s a registered sex offender now.
Even staunch conservative Andy McCarthy expressed concern about the heavy mandatory minimums for possession of child pornography over at The Corner. First-time offenders can get 15-year minimum sentences, more than some of the mobsters that McCarthy prosecuted as an assistant U.S. attorney. As McCarthy puts it:
I think that’s nuts. And mind you, compared to the average person (and even the average prosecutor), I am Atilla the Hun: I would not have the slightest problem imposing capital punishment on the people who actually produce and “perform” in these depictions in which young children are sexually abused…
But the mandatory minimums have to be sensible — “Doing it for the children” is not a rationale for failing to distinguish the truly evil from the venial.
This is why Vermont legislators carved out an exemption for sexting so that teens would not be charged as child pornographers and registered as sex offenders. The video at the link shows Vermont State Senator John Campbell making the case for such a legal distinction:
If a 14- or 15-year old girl, let’s say, decides to send a photograph of her breast to her boyfriend who is 15, she has just then become a transmitter of child pornography and he is in possession of child pornography, and as such, then they are now on the lifetime registry, the sex offender registry. So take that a little bit further, and see what’s going to happen. We have a child who now, as a registered sex offender, if they are lucky to get into college, because they have to register when they get to college. If they’re fortunate enough to get there, and they want to, let’s say, go into a teaching profession. Do you think that they’re going to be hired as a teacher when they have been charged with possession of child pornography? The answer is probably not.
Internet safety advocate Donna Rice Hughes responds: “They don’t have to go into a sex offender registry. There is prosecutorial discretion currently in the child pornography laws.”
We should not create a criminal code broad enough to give prosecutors the ability to charge anybody with something, and then leave it to the prosecutors’ good sense to rein themselves in.
“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.”
— Chief Justice Morrison Waite, United States v. Reese, 92 U.S. 214, 221 (1875)
The problem goes beyond sexting. Last year the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on “cyberbullying” legislation that would have criminalized using the internet to hurt someone else’s feelings. Setting aside the First Amendment issues with such a concept, this was a bill directed at making a federal felony out of teenagers’ rude conduct, in spite of the fact that there are no federal juvenile detention facilities to deal with this newly criminalized class of citizens.
Vermont’s sexting fix is a good start, but we have a long way to go before our laws again reflect traditional notions of criminal justice.