One in five teenagers¹ has sent sexually suggestive, nude or semi-nude "sext" messages by phone or otherwise. This article discusses the high-stakes legal issues raised by sexting and their implications for counsel to teens, parents, and schools.

Sexting" is a word you have probably heard but might not be able to define. For purposes of this article, "sexting" is the practice of sending nude or semi-nude pictures by cell phone or other electronic media; it is a sexual text ('sext') message. Sexting is a recent phenomenon, fueled by widespread availability of affordable mobile phones with picture-taking and sending capabilities.²

It is increasingly common, especially among sexually curious, hormone-driven teenagers. On average, one in five teens have sent or posted nude or semi-nude pictures or videos of themselves.³ Although just over two-thirds of those teens meant those images for their boyfriend or girlfriend, 25 percent of teen girls and 33 percent of teen boys admit they have had sext messages meant for someone else shared with them.⁴

Among teens, sexting is ordinary and somewhat accepted, even though a majority of teens know sexting "can have serious negative consequences."⁵ Most, however, do not know it is a crime.⁶

Adults risk embarrassment if their sext message is misdirected. But when a teenager (meaning a minor between 13 and 17) creates, sends, or receives a sext message in Illinois, he or she may have committed the criminal offense of child pornog raphy.⁷ Sex offense laws predating the sexting phenomenon do not contemplate the ease and frequency with which teens send risque' pictures to each other from their phones. Nonetheless, they subject sexting teens to a myriad of felony charges and branding as a "sex offender."⁸

A teenager's ability to snap a picture and send it in seconds without reflection gives rise to new legal issues for society and the legal community. Teen sexting confronts attorneys and courts with new and complicated legal issues.⁹ Across the nation, prosecutors and police are not yet uniform in applying these laws to the minors they were meant to protect.¹⁰ Criminal and juvenile courts must also ponder applying severe criminal penalties to youth who may have merely had a moment of poor judgment.¹¹

Moreover, a sexting teen's social and legal problems often converge at the schoolhouse door. For attorneys who counsel educational institutions, it is only a matter of time before they must grapple with sexting-related issues.

These issues pose difficult challenges for school administrators and staff, especially where improper investigation can subject school personnel to prosecution for the same criminal offenses that teens risk by sexting. By being aware of the relevant law and having policies in place to deal with sexting, prosecutors and law enforcement, school districts, parents, and teenagers themselves can curb sexting behavior while avoiding liability.

The crime of sexting

Sexting can have serious social and emotional consequences for teens and adults alike - especially where a picture is taken without knowledge, forwarded without consent, or used to bully and harass. Further, the embarrassment of uncontrolled dissemination of personal and private pictures can significantly disrupt the teen's life.

For example, after hundreds of people were sent sext messages a teen had sent only to her boyfriend, she was cruelly harassed through MySpace and Facebook, leading her to hang herself.¹² In addition to risking reputation and self-esteem, sexting teenagers also expose themselves, their peers, and their school administrators to significant criminal liability.

Child pornography. Most alarmingly, a sexting minor, or a recipient of a sext message from a minor, may have committed one or more felonies under the Illinois Child Pornography Act (the "Act").¹³ Offenses under the Act are generally Class 1 felonies, punishable by fines ranging from $1,000 to $100,000 and imprisonment for four to 15 years.¹⁴

In Illinois, a person commits the offense of child pornography by videotaping or photographing anyone he or she should know is under the age of 18 and who is engaged in any sexual act or in any pose involving lewd exhibition of unclothed or transparently clothed genitals, pubic area, buttocks, or female breast.¹⁵ There is no exception for taking pictures of oneself.¹⁶ Thus, a 17-year-old who snaps his or her own revealing picture has technically created child pornography, a Class 1 felony with a mandatory fine of between $2,000 and $100,000 and at least four years in prison.¹⁷ It would not be a crime if the teen were 18.¹⁸

Soliciting or enticing someone one should know is under the age of 18 to appear in such a picture or videotape is also a child pornography offense.¹⁹ Thus, a 16-year-old boy violates the Act if he asks his 16-year-old girlfriend to send him a semi-naked picture.²⁰ If the youth is 17 or older and uses the Internet to solicit the sext message from a minor, he or she may also be charged with "indecent solicitation of a child," a Class 4 felony.²¹

Forwarding a sext message to others may also constitute the offense of child pornography.²² Reproducing or disseminating such pictures of a person one should know is under the age of 18 is an offense of child pornography.²³ A teen who sends his or her own picture to another also violates this provision.²⁴

A person who, knowing its content or nature, possesses a photograph or film depicting someone he or she should know is under 18 has also violated the Act.²⁵ If the possession is involuntary, the possessor has a defense.²⁶ Possession is voluntary where a person "knowingly procures or receives" the illicit material "with sufficient time to terminate his or her possession of it."²⁷

While the statute does not define "sufficient time," sooner is better than later. Finding and deleting an unsolicited sext message an hour after its receipt better demonstrates involuntary possession than does carrying a sext message on the phone for two months or more.

The Act dictates that cell phones used for sexting by minors must be seized and forfeited, allowing "law enforcement or prosecuting officers" to possess offending materials as part of the "performance of [their] official duties."²⁸ School administrators get no such protection when investigating incidents of sexting among students.²⁹ Consequently, school officials must investigate sexting cautiously because, like teens, they may also be charged with possessing child pornography.³⁰

Further, minors who sext across state lines (by using the Internet, for example), or by using materials that traveled in interstate commerce, are also subject to federal charges of child pornography.³¹ For example, students who post prohibited pictures on their Facebook pages have likely violated federal criminal law.

Sex offender registry. In Illinois, someone who commits the offense of child pornography is a "sex offender" and must register and report as such.³² Not only is non-compliance with reporting a felony,³³ but even compliant individuals face the shame and scrutiny of public reporting.

Beyond registering and reporting as sex offenders, students convicted of child pornography may also be bound by other restrictions that can significantly complicate their lives. For example, child sex offenders 17 and older cannot be present on school grounds or loiter or reside within 500 feet of the school building.³⁴ Revealing that these laws do not contemplate school children, there are exceptions for sex offenders who are parents of students, allowing them to be on school grounds in particular circumstances, but no such exception exists for student sex offenders.³⁵

The following example places the foregoing offenses in perspective: a 16-year-old girl who snaps a sexual, semi-nude picture of herself to send as a phone message to her boyfriend has committed at least three felonies by creating, disseminating, and possessing "child pornography." If her boyfriend requested she send the sext message, he is subject to at least two felonies: soliciting and voluntarily possessing the sext message. Thus, one unwise youthful indiscretion results in five felonies and subjects the teenage couple to branding as "sex offenders."

A legislative response. Some states have attempted to decriminalize sexting among teens, or at least reduce the offense from felony to misdemeanor.³⁶ For example, Vermont recently enacted a law making a teenager's first "sexting" offense a juvenile court matter, giving the teen the opportunity to be sent to a diversionary program rather than be charged as an adult and branded a sex offender.³⁷

As this article went to press, the Illinois Senate had just passed SB 2513,³⁸ which would transform most sexting between teens from a felony to a noncrime by treating the teen in question as a nondelinquent minor in need of supervision under the Juvenile Court Act. Enacting this bill or one like it into law would be a huge step in the right direction.³⁹

Solving sexting?

Cell phones have become ubiquitous among students, but the law has been slow to catch up. Illinois legislators should continue to examine incidents of sexting and how the current law applies to them. Legislators should consider drafting a narrow exception to sex offenses to prevent "innocent" teens from being charged with serious violations while maintaining liability for those who are guilty of actual child pornography - regardless of age.

Until then, parents and schools may be better equipped to discipline and admonish sexting teens than are police and prosecutors. Because of their age, a vast majority of sexting teenagers attend school. Thus, even if the likelihood that sexting teens will be charged with a felony is remote, school districts cannot ignore the disruptive and potentially tragic consequences of sexting among their students.

School districts should work with local law enforcement in establishing district policies and procedures for investigating allegations of sexting. They should discuss whether and how, if at all, law enforcement will be involved in sexting issues. Because determining what constitutes criminal "child pornography" can be difficult even for those in law enforcement, Dave Haslett, Chief of the Illinois Attorney General's High Tech Crimes Bureau, suggests that schools involve law enforcement early to avoid missteps.⁴⁰

Based on this dialogue with law enforcement, the school district should revise its policy and procedure accordingly.⁴¹ Additionally, school districts should educate their students about the pitfalls and criminal consequences of sexting.

No cell phones. Naturally, prohibiting student use of cell phones during the school day can greatly reduce sexting issues at school. Because students may still use computers to send, request, or view offending material, school districts should also consider a broader policy prohibiting the creation, possession, or dissemination of ob-scene or profane materials by students, regardless of the device(s) used.

Confirm violation of school policy. A school should confirm whether a student alleged to have sexted actually violated school policy. Establishing improper conduct will be easier where the district has explicitly defined inappropriate behavior with regard to sexting in its prohibited conduct policy.

Take the cell phone. According to attorney Daniel Spillman of the Illinois Attorney General's High Tech Crimes Bureau, possession of a sext message that is child pornography is no different than possessing a "kilo of cocaine."⁴² He advises school administrators to immediately confiscate devices with such material on them and report the incident to law enforcement immediately.

Beyond reducing school district exposure, confiscating the device containing the sext message will prevent further dissemination, further harm to any victims, and allow for an investigation of other students that may have been involved or harmed. Involving law enforcement early will also minimize any potential criminal liability of school personnel.

Report incident to victim. The student pictured in a sext message may be unaware of his or her victimization. Schools should consider when and how they should inform such a student, giving thought to the sensitive nature of the subject and the student's right to privacy. Schools may also consider coordinating this task with local law enforcement and guidance counselors.

Discipline the student(s). Administrators should establish a uniform method for disciplining students involved in sexting. When disciplining sexting students, school personnel should consider the facts of the situation and review district policies related to sexual harassment, bullying, indecent or profane materials, use of electronic devices, and failures to abide by student handbook guidelines.

Educate teens and their families. The school district should educate students and parents about sexting and school policies related to the behavior.⁴³ Many teens, even if they do not sext, consider it "normal"⁴⁴ and do not understand sexting is a crime.⁴⁵ Many parents are unaware of the phenomenon's pervasiveness or its consequences.

Families should discuss the legal and moral issues surrounding sexting. Parents should frequently review their child's social media, e.g., messages on cell phones, Face-book, MySpace, etc., and set rules for the use of such media.⁴⁶ Teenagers and their families should also review their school's policies related to electronic devices and prohibited student conduct.

Teens should not create, possess, solicit, or send/forward sext messages. Teens possessing such messages involuntarily have a defense.⁴⁷ To ensure the efficacy of this defense, teens must be vigilant in discovering and deleting sext messages.

Lawyers counseling a minor accused of sexting and violating child pornography laws should also consider the minor's role in the creation, dissemination, or possession of the offending material to appreciate potential exposure to other criminal charges. Lawyers should also explore whether a teen's actions give rise to civil liability for claims such as invasion of privacy or defamation.

Finally, although child pornography laws generally regard minors as the victim, prosecuting sexting teens for a strict-liability child pornography offense may be punishing them for their age rather than the con tent of a sext. Thus, lawyers should also consider whether the content of a sext message constitutes child pornography or is protected speech under the First Amendment.⁴⁸

What next?

On average, one in every five teens at a school near you is sexting.⁴⁹ Until the Illinois General Assembly amends the criminal code to account for the unforeseen teenage use of technology in violation of the law, sexting will continue to be an increasing social and legal problem. Thus, prosecutors and attorneys for these sexting teens, their parents, and their school districts should be prepared to educate and advise their clients about the social and legal ramifications of sexting.

 

Joshua Herman is an associate for Miller, Hall, & Triggs, LLC, in Peoria, where he represents local governments and educational institutions.

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1. National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmo-girl.com, Sex and Tech, Results from a Survey of Teens and Young Adults *1 (unpublished survey results of 1,280 teens and young adults across the United States, polled from Sept 25, 2008, to Oct 3, 2008), online at http://www.thenationalcampaign.org/
sextech/PDF/SexTech_Summary.pdf (stating 22 percent of teen girls and 18 percent of teen boys have sent or posted nude or semi-nude content of themselves).
2. See Annalisa Barbieri, You don't know what sexting is?, The Guardian (Aug 7, 2009), online at http://www.guardian.co.uk/lifeandstyle/2009/aug/07/sexting-teenagers-mobile-phones (discussing how advances in technology fuel changes in sexual expression).
3. National Campaign, Sex and Tech, at * 1 (cited in note 1). See Risa V. Ferman and Lynne Abraham, Sexting: A flirtatious felony, The Reporter (Sep 14, 2009), online at http://www.thereporteronline.com/articles/
2009/09/14/opinion/srv0000006301163.txt.
4. National Campaign, Sex and Tech, at * 3 (cited in note 1).
5. See Kathie Bassett, 'Sexting' common among teens, The Telegraph (Jun 27, 2009), online at http://www.thetelegraph.com/news/school-28410-phone-sexting.html; National Campaign, Sex and Tech, at * 3 (cited in note 3).
6. Karina Bland, 'Sexting' can have serious consequences, The Arizona Republic (Aug 27, 2009), online at http://www.azcentral.com/news/articles/2009/08/27/20090827sexting0827.html (A judge ordered eight sexting teens to perform community service by asking their teen peers whether they knew sexting was a crime; only 31 of 255 knew).
7. 720 ILCS 5/11-20.1 (Child Pornography Act); See also Kristen Schorsch, Sexting leads to felony charges for children, Chicago Tribune (Jan 28, 2010), online at http://www.chicagotribune.com/news/local/ct-met-0129-sexting-20100128,0,202244.story (reporting that a sexting 12-year-old boy and 13-year-old girl were charged with the felony child exploitation and possession of child pornography after their phones were confiscated by a Valparaiso, Indiana middle school).
8. See, for example, Id; 720 ILCS 5/11-6 (indecent solicitation of a child); 720 ILCS 5/11-9.1 (sexual exploitation of a child); 730 ILCS 150/2 (defining "sex offender"); 730 ILCS 150/3 (duty to register as sex offender). See also 720 ILCS 5/11-23 (posting of identifying or graphic information on a pornographic Internet site or possessing graphic information with pornographic material). For possible charges if communication went beyond just flirting, see 720 ILCS 5/12-15(b), (c) (criminal sexual abuse).
9. See Douglas Berman, The many fascinating legal and social issues swirling around "sexting", Sentencing Law and Policy blog, Mar 30, 2009, online at http://sentencing.typepad.com/sentencing_law_and_
policy/2009/03/the-many-fascintating-legal-and-social-issues-swirling-around-sexting.html (stating that the issues surrounding sexting, "involving juvenile sexuality and criminality, severe child porn laws, new technologies, legal uncertainty and prosecutorial discretion, and constitutional law - all but ensure[ ] that sexting topics will draw lots of legal and social attention for quite some time.").
10. See Sean D. Hamill, Students Sue Prosecutor in Cellphone Photos Case, New York Times (Mar 26, 2009) online at http://www.nytimes.com/2009/03/26/us/26sextext.html?_r=1&scp=1&sq=cellphone%20photos
%20case&st=cse (explaining that prosecutor threatened charges requiring prison time and reporting as a sex offender if teen girls who were photographed from the waist up, in their bras, did not "attend a 10-hour class dealing with pornography and sexual violence."); Rebecca Croniser, 'Sexting' investigated at N. Hartford school, Utica Observer-Dispatch (Mar 1, 2009) online at http://www.uticaod.com/news/x594728154/-Sexting-incident-at-Perry-Junior-High (stating that no charges were filed against a teenage boy despite an estimated 300 students receiving the picture he took of his genitals). But see Bland, 'Sexting' consequences, Arizona Republic (Aug 27, 2009) (cited in note 6) (discussing felony charges against teenager who sent photo of his genitals to classmates); Riva Richmond, Sexting May Place teens at Legal Risk, New York Times (Mar 26, 2009) online at http://gadgetwise.blogs.nytimes.com/2009/03/26/sexting-may-place-teens-at-legal-risk/?scp=1&sq=sexting%
20may%20place%20teens%20at%20legal%20 risk&st=cse (explaining that police and prosecutors in Pennsylvania, Ohio, and Wisconsin are actively pursuing cases against sexting teens).
11. See Miller v Skumanick, 605 F Supp 2d 634 (MDPA 2009) (granting temporary restraining order preventing prosecutor from filing child pornography charges against teens alleged to have sexted).
12. Cindy Kranz, Nude photo led to suicide, Cincinnati Enquirer (Mar 22, 2009), online at http://news.cincinnati.
com/article/20090322/NEWS01/903220312/-1/today; see also Knowledge Networks, The 2009 MTV - Associated Press Digital Abuse Study, Executive Summary, *5 (unpublished survey results of 1,247 teens and young adults across the US, polled from Sep 11 to Sep 25, 2009), online at http://www.athinline.org
/MTVAP_Digital_Abuse_Study_ Executive_Summary.pdf (finding 12% of sexters and 8% of digital abuse targets "have considered ending their own life in the past year compared to 3% of people who have not been [digitally] bullied and are not involved in sexting.").
13. 720 ILCS 5/11-20.1.
14. 720 ILCS 5/11-20.1(c); 730 ILCS 5/5-4.5-30; but see 705 ILCS 405/1-4.1 (stating "any minor accused of any act [classified as a misdemeanor offense] under federal or State law, or a municipal ordinance that would not be illegal if committed by an adult, cannot be placed in a jail, municipal lockup, detention center or secure correctional facility.").
15. 720 ILCS 5/11-20.1(a)(1).
16. Id.
17. 720 ILCS 5/11-20.1(c); 730 ILCS 5/5-4.5-30.
18. See 720 ILCS 5/11-20.1(a)(1) (As with other offenses of child pornography, it is only a crime where "he knows or reasonably should know [the child] to be under the age of 18").
19. 720 ILCS 5/11-20.1(4).
20. Id.
21. 720 ILCS 5/11-6(c); For sentencing, see 730 ILCS 5/5-4.5-45 (A Class 4 felony is subject to one to three years of prison); 730 ILCS 5/5-4.5-50 (stating fine may be up to $25,000).
22. See 720 ILCS 5/11-20.1(a)(2).
23. Id.
24. Id.
25. 720 ILCS 5/11-20.1(a)(6), (c) (noting possession is a Class 3 felony).
26. 720 ILCS 5/11-20.1(b)(5).
27. Id.
28. 720 ILCS 5/11-20.1(b)(3), (e).
29. See 720 ILCS 5/11-20.1(a)(6).
30. 720 ILCS 5/11-20.1(a)(6).
31. See 18 USC § 2251, et seq.
32. See 730 ILCS 150/2(B)(1); 730 ILCS 150/3.
33. 730 ILCS 150/10(a).
34. 720 ILCS 5/11-9.3(a)-(b-5).
35. Id.
36. Bland, 'Sexting' consequences, Arizona Republic (Aug 27, 2009) (cited in note 6) ("Lawmakers in Vermont, Utah and Ohio are making sexting a misdemeanor instead of a felony when the cases involve teenagers, and as long as the sender voluntarily transmitted the image."). See Kara Rowland, 'Sexting' is thorny legal issue, Washington Times (Jun 23, 2009) online at http://washingtontimes.com/news/2009/jun/23/sextingis-thorny-legal-issue/; Dick Russ, Ohio to address 'sexting' laws, WKYC-TV (Apr 13, 2009), online at http://www.wkyc.com
/print.aspx?storyid=111478.
37. Act of May 9, 2009, 2009 Vt Laws 58§ 4, to be codified at 13 VSA§ 2802b, online at http://www.leg.state.
vt.us/ docs/2010/Acts/ACT058.pdf.
38. Michelle Manchir, Sexting bill passes Illinois Senate, Chicago Tribune (posted March 18, 2010), online at http://www.chicagotribune.com/news/local/ct-met-illinois-sexting-bill-03....
39. A similar bill, HB 4583, passed the Illinois House on March 11. Another slightly more punitive sexting bill, HB 5164, was still alive at presstime.
40. Telephone conversation with Dave Haslett, Chief of the Illinois Attorney General’s High Tech Crimes Bureau (Sep 28, 2009).
41. See Bassett, ‘Sexting’ common, The Telegraph (Jun 27, 2009) (cited in note 5) (Explaining that school districts are reviewing and amending policy to account for recent sexting behavior).
42. Telephone conversation with Daniel Spillman, attorney for the Illinois Attorney General High Tech Crimes Bureau (May 13, 2009).