NCJFCJ Annual Conference
Seattle, July 2013
Hon. Videtta Brown and Jennifer L. White, JD
 https://docs.google.com/file/d/0B6dcvSYzm
D4selJ3UkltOF9vMGs/edit?usp=sharing
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 Assume
all the facts are true, what charges
could be filed against Monique and Chris and
where would the cases be heard?
 What additional information would you like
to know about this situation?
“Charging teens for sexting is an erroneous
use of the criminal justice system to address
a problem that should be handled through
educational programs and better parenting.”
 What are the pros and cons of charging
adolescents with child pornography?
 When should an adolescent be charged with
child pornography for sexting?
 What other laws might apply?
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 Are
there any circumstances in which the law
should never consider a teenager’s sexting to
be criminal?
 Does the Juvenile Code in your state offer
any tools for addressing sexting?
 Do judges have a role in controlling the
charges filed by prosecutors against sexters?
 What
is the judge’s role in the community to
address sexting and prevent tragedies
resulting from this behavior? What
limitations and opportunities exist?
 What are elements of a good legislative
response on this issue? A good judicial
response?
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 “Sexting”
has become widespread among
American Teenagers.
 20% of all teenagers have sent or posted
nude or semi-nude pictures of themselves.
(National Campaign to Prevent Teen and
Unplanned Pregnancy, December 2008).
 About ½ of teens who admitted to sexting
said they felt pressured to do so. MTV Digital
Abuse Survey (2011).
 Depending
on the study, 20-40% of teens
shared images received from a friend or
classmate.
 75% of youth ages 12-17 own cell phones.
 Older teen girls send a median of 100 texts
per day
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In 2012, at least 13 states introduced or are
considering bills or resolutions aimed at
"sexting”.
Three states--Hawaii, Pennsylvania and South
Dakota--enacted legislation in 2012.
Since 2009, at least 20 states and Guam have
enacted bills to address youth sexting.
Deterrence (education, information sharing)
Applying appropriate penalties (diversionary
programs for juveniles, age gap provisions in
child pornography laws, misdemeanor charge vs.
felony)
Federal legislation on Cyberbullying
Ordering studies of the issue (IN & VA)
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 Prosecutorial
Response: Charges of Child
Pornography against teens
 State and fed law no age distinction on who
can be charged with child pornography
 Recipients can be charged with possession,
distribution
 Judge Philip Trumpeter of Roanoke, VA:
“Statute is meant to protect children from
exploitation, even if the children are the
ones exploiting themselves
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State v. Canal (Iowa) 18 y.o. boy responded to a
14 y.o. friend’s request for a naked picture. His
obscenity charge was upheld by Iowa Supreme
Court and he was forced to register as a sex
offender.
A.H. v. State (FL) Appellate court upheld teenage
girl’s child pornography conviction for pictures
she sent to her boyfriend that were never shared
with others.
Philip Alpert (FL) 18 y.o. man charged with a
felony for sharing his ex-girlfriend’s picture with
over 70 people.
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 Teens
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found with Child Pornography:
Can be charged with felonies
Recent cases were brought under state laws by
local prosecutors, usually in juvenile court.
Could result in adult charges and penalties,
including time behind bars and mandatory
registration as a sex offender (20 years).
Both juvenile adjudication and criminal
conviction have potential, serious, enduring
consequences for:
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Employment
School admission
Loan eligibility
Sentencing enhancements in future convictions
Sex offender registration
Immigration
Right to possess firearm upon reaching adulthood
Ineligibility for military service
Public housing
Ability to adopt or foster child
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 SORNA
(Sex Offender Registration and
Notification Act)
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15 years to life
14 years or older required to register
Does not include juvenile adjudication of
delinquency except in certain circumstances
Usually for conviction of one year plus
Has resulted in a Civil Rights Action against a
prosecutor under 42 U.S.C. § 1983 based on First
Amendment: Freedom of Speech and Fourteenth
Amendment: Substantive Due Process Rights of
Parents to Direct their Children’s Upbringing.
(Miller v. Skumanick, U.S. District Court for the
Middle District of Pennsylvania
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Albert and Cynthia Logan of Blue Ash filed suit against the
girl’s school, the Cincinnati suburb of Montgomery and
some students.
Sought unspecified money damages on behalf of the estate
of 18-year-old Jessica Logan, who died in July.
The lawsuit claims the school did nothing to stop the
harassment and Montgomery police failed to criminally
charge those “sexting” the photos.
In June 2012, U.S. District Court Judge S. Arthur Spiegel
ruled the parents had submitted sufficient evidence
against the school district that the case could proceed to a
jury trial (Violation of Title IX).
Jessica’s parents settled for an unspecified amount in
2012.
Ohio Governor Kasich signed the Jessica Logan Act, which
went into effect November 4, 2012, requiring schools to
prevent cyber-bullying.
 42
U.S.C. § 1983
 Tort Liability: For example, I.I.E.D., N.I.E.D.
 Injunctions/ protection orders
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 Conversation
has focused on the
prosecutorial response
 Little account for “sexting” as potentially a
part of the greater framework of coercive
control in intimate relationships amongst
teens
 Little account for the subject of photos
(usually teenage girls) as potential victim of
coercion, abuse harassment, intimidation
 No
account for “normal” adolescent
development
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Cognitive-do not process info as quickly and less
capable of making reasoned decisions
EmotionalPhysical-maturation of limbic system outpaces
frontal lobe development; puberty increase in
risky behaviors
Social- more susceptible to peer pressure
Personality
Sexual
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 Victimization
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vs. Consent
Is there an actual victim? Who are the victims?
Who are the perpetrators? What is the crime?
How do you account for coercion and lack of
consent to forwarding?
Is it legally sound to charge and prosecute these
teenagers for child pornography? Do those
statutes contemplate these “crimes.”
This determination will inform potential
remedies.
Legal scholars emphasize the importance of
judicial discretion in teen sexting cases because
no two cases are alike, teens’ motivations for
sexting vary, and each incident requires a
tailored response.
 In the courtroom, judges should assess each teen
sexting case individually to determine the nature
of harm and whether the sexting is part of a
broader pattern of cyber bullying or teen dating
violence.
 Judges also have an important role to play in the
broader community to provide leadership and
education to prevent harms to teens from
sexting.
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 Assess
each case individually to determine
the intentions of the sexting teens, the scope
and circumstances around the dissemination,
and the presence and breadth of any possible
harm from their actions.
 Consider
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in your assessment:
any significant age differences among
participants
the extent of distribution of the photos
the presence of abusive or coercive behavior
any prior incidents of sexting
the level of understanding by participants of the
potential harms of sexting
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 Determine
whether the exchange of photos
was consensual and intended to be private or
whether the teen who sent the picture felt
pressured to do so. Sometimes actions that
appear voluntary are the result of coercion
or abuse.
 Ask teens who send the photos of themselves
if they have felt pressure in the relationship
to engage in other behaviors against their
will. Dynamics of power and control indicate
possible adolescent relationship abuse.
 Determine
whether the distribution of the
photos included derogatory or abusive
language against the person in the photos.
Did the person distributing the photos do so
to harm or humiliate the person in the
photos? Were the recipients of the photos
selected to cause greater harm or
humiliation to the photographed teen?
 Assess whether the participants have
engaged in other bullying behaviors that
could be part of a pattern of cyber bullying
or digital harassment.
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#WhereIAmMe
On Tuesday, June 25, 2013, That’s Not Cool will launch a social media campaign asking teens to reflect on
and share places in their communities where they feel safe. We invite you to share the campaign with teens in
your work and use the questions below to guide a conversation about building safe and healthy communities
for everyone.
Step 1: Ask teens
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Where do you feel like you can be yourself?
Have teens brainstorm 5 – 10 places in their community where they feel like they can be themselves.
Step 2: take photos
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Using digital cameras, cell phones, or disposable cameras, have teens take photos of the places in
their community where they feel like they can be themselves.
Step 3: share photos
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Teens upload their photos to their favorite social networking sites (Facebook, Twitter, Tumblr,
Instagram, Google+, etc.).
Once uploaded, have teens add the hashtag #WhereIAmMe to their post. Be sure to tag
@ThatsNotCool in the post as well.
Discussion questions
Encouraging teens to reflect on the places where they feel like they can be themselves promotes resilience by
helping teens to recognize the resources available to them every day. Even when they might feel isolated and
alone, we strive to build communities where every teen has a place or a person in their lives they can turn to
for support. The following discussion questions can help guide your conversation with teens to support their
participation in the #WhereIAmMe campaign.
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Why did you choose the places or people you photographed? What is it about them that makes you feel
comfortable being yourself?
Have you ever gone to one of the places or people you photographed when you were having a problem
or needed help with something? What happened as a result?
You photographed places in your community where you feel like you can be yourself, but there are
other places that might not feel as comfortable to you. What do you think those places could do to
make you and others feel more comfortable being themselves?
Be sure to follow That’s Not Cool and the #WhereIAmMe campaign on Facebook, Twitter, Tumblr,
Google+, and Instagram!
That’s Not Cool is an initiative of Futures Without Violence developed in partnership with the Department of Justice’s Office on Violence
Against Women and the Advertising Council. For more information, visit www.ThatsNotCool.com.