House Bill 1058, introduced in the Colorado Legislature last week, is a well-intentioned attempt to give prosecutors an alternative between doing nothing and charging a minor with a felony while labeling a teen guilty only of childish indiscretion as a sex offender. It is an effort to moderate an unintentionally brutal aspect of the law.
A better question, however, is why the state needs to be involved at all. Just because something is foolish, stupid or even dangerous does not mean there has to be a law against it.
At issue is “sexting,” the practice of sending photos of oneself nude or partially clothed to someone else, typically via cell phone. When sent by an adult to another adult it is vulgar but legal. (Former Congressman Anthony Wiener comes to mind.) But when minors are involved, the law now sees it as the sexual exploitation of a child. And with that, the consequences can be devastating – including the crippling designation as a sex offender. Under current law, viewing or possessing sexually explicit pictures of children is child pornography, regardless of whether the child depicted actually took and sent the photos.
HB 1058 would create the misdemeanor crime of “misuse of electronic images by a juvenile.” It is a sensible idea, as far as it goes. But why stop there?
The idea that pictures of one’s partially clad or even nude offspring are circulating on high schoolers’ cell phones is not a parent’s worst nightmare. Sexting is not lethal. And, while talk of sexting naturally leads parents to worst-case scenarios, most episodes are probably fairly mild by contemporary standards, perhaps barely R-rated. Still, to any loving parent considering possible implications down the road it has to be horrifying.
But does that make it a criminal matter? If a 17-year-old girl sends a selfie with her breast exposed to her similarly aged boyfriend, who exactly is the criminal? And what crime was committed? It would be bad enough to imagine classmates gawking at photos of your exposed child, but do the cops have to get involved as well?
(If the two 17-year-olds just went ahead and had consensual sex no law would be broken.)
True, there are times when legal intervention is warranted. For example, HB 1058 would not allow the misdemeanor statute to apply if there was a more than four year age difference. Prosecution should also go forward if the photos were taken surreptitiously, against the subject’s will or if an adult is having such contact with a minor. Other legal action may be appropriate if the photos are put to vindictive, threatening or coercive use.
The bipartisan sponsors of HB 1058 are right to be concerned about treating as felons and labeling as sex offenders minors who are really guilty only of being foolish. But cases of true sexting – voluntary sharing between relative peers – why should the state be involved at all?
