States Reevaluating Criminalization of Juvenile Cyber-Sex

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


This past legislative session Texas joined the ranks of a small number of states which have reduced criminalization “teen sexting.” Gov. Rick Perry signed the law this past June which is designed to, according to Wireupdate, “prevent teenagers from sexting without subjecting them to serious criminal penalties that have life-long consequences.” Before this latest legislation became law on September 1st teenagers could have faced the more serious felony charge of “promotion of child pornography” which, upon conviction, would have resulted in lifetime registration as a “sex offender.”


The new law permits prosecutors to charge minors, younger than 18, caught sexting with a misdemeanor punishable by a fine of not more than $4,000, confinement in jail for less than a year, or both. Prosecutors can also request courts sentence the youths to “participate in an education program about sexting’s harmful long-term consequences,” reported Wireupdate. But more significantly the bill requires the Texas School Safety Center, with input from the Texas Attorney General’s Office, to develop an “education program” that will allow schools to first “address the consequences of sexting.”


“Studies show that teenage students are increasingly creating, sending and receiving explicit pictures of themselves on their mobile telephones,” Texas Attorney General Greg Abbott said. “The practice is not just harmful to the young Texans who appear in compromising photograph – it poses significant legal risks. Thanks to Sen. Kirk Watson’s legislation, Texas has a common sense law that holds wrongdoers accountable – but does not impose life-altering consequences on young offenders.”


Sen. Watson, the sponsor of the bill in the Texas Senate, said the new law is a “timely [and] thoughtful” response to modern legal issue faced by prosecutors and children. He added: “This problem must be met head-one with both educational and appropriate consequences. We’ve given law enforcement an alternative for dealing with juveniles who make a mistake, and we’ve left prosecutors the discretion to pursue felony charges against those who constitute a true threat to our children.”


Why do our teenagers “sext” in the first place?


Psychologist Dr. Stephanie Mihalas, adjunct professor at Pepperdine University and found of the Center for Well Being: Psychological Services for Children, Youth, and Families in Los Angeles, offers some insight: “Some of the reasons that teens engage in sexting initially may include flirtation with his/her significant other or as a means of being ‘cute.’ Importantly, ‘sexting’ is not limited to the female gender as the media often portrays. Males frequently send pictures of their genitalia or pictures of themselves engaging in sexual acts. After the first picture or two are sent, sexting then often times becomes an issue of power or bullying such that the person on the receiving end wants to see more pictures. The person who takes the pictures may have had enough; however, becomes concerned that the other partner may not ‘love them anymore’ or that they may ‘break up’ with them if they do not continue. Herein, lays the vicious cycle of sexting, whereby one partner is actually uncomfortable and becomes a victim. Yet, all too frequently, the victim becomes punished either when a break-up occurs and pictures of him/her are distributed around the school. Or at a legal level is punished with long-term repercussions that are …based on federal and state guidelines.”


And, more to the point, how prevalent is sexting in this country?


According to the website PC’s Dreams and The National Campaign, sexting is an “alarming” and “dangerous” craze among teenagers. The following statistics presented by these two sources support this notion:


  • 20% of all teenagers have sent or posted nude or semi-nude pictures or video of themselves: 22% of teenage girls, 18% of teenage boys, and 11% of young teen girls ages 13-16 have engaged in this behavior.
  • 39% of all teenagers have sent or posted sexually suggestive messages: 37% of teenage girls and 40% of teenage boys have engaged in this behavior.
  • 15% of teenagers who have sent or posted nude or semi-nude images of themselves say they have done so to someone they only knew online.
  • 48% of teenagers say they have received such messages.
  • 71% of teenage girls and 67% of teenage boys who have sent or posted sexually suggestive content say they have sent or posted this content to a boyfriend or girlfriend.
  • 21% of teenage girls and 39% of teenage boys say they have sent such content to someone they wanted to date or hook up with.
  • 44% of both teenage girls and boys say it is common for sexually suggestive text messages to get shared with people other than the intended recipient.
  • 36% of teenage girls and 39% of teenage boys say it is common for nude or semi-nude photos to get shared with people other than the intended recipient.
  • 51% of teenage girls say pressure from a guy is the primary reason girls send sexy messages or images; only 18% of teenage boys cited pressure from a female counterpart as a reason.
  • 66% of teenage girls and 60% of teenage boys say they did so to be “fun or flirtatious”; their most common reason for sending sexy content.
  • 52% of teenage girls used sexting as a “sexy present” for their boyfriend.
  • 44% of both teenage girls and boys say they sent sexually suggestive messages or images in response to such content they received.
  • 40% of teenage girls said they sent sexually suggestive messages or images as “a joke.”
  • 34% of teenage girls say they sent or posted sexually suggestive content to “feel sexy.”
  • 12% of teenage girls felt “pressured” to send sexually suggestive messages or images.


And the problem of sexting is not confined to teenage pre-high school and high school students. According to researchers of the University of Rhode Island faculty in the Department of Human Development and Family Studies, 80% of the nation’s college students have received sexually suggestive images via text messaging. The researchers surveyed 204 college students last spring and found that 58% of them had received sexually suggestive images and 78% had received sexually suggestive messages. According to Science Daily, two-thirds of the group had sent sexually suggestive messages with 73% being sent to a relationship partner while 10% were sent without consent of the person who originally sent the message.


Rhode Island, like other states, also took steps to reconsider teenage sexting. This past July Gov. Lincoln Chafee signed legislation that makes sexting a “status offense” and allows a referral to family court rather that adult criminal court. The bill requires education on technology practices essential to minors and college students. Science Daily reported the Rhode Island law provides that minors who create and send sexually explicit images of themselves can be charged with a “status offense” and referred to family court while both minors and adults who “possess or forward sexual images of anyone younger than 18 may be charged under the state’s child pornography laws.”


Two years ago we dealt with the issue of sexting and its inherent dangers (here). The problem has only worsened over the ensuing two years. But we are appreciative of the fact that the Texas Legislature decided to approach this thorny social issue with common sense. The Rhode Island law leaves the door open for pre-high school and high school teenagers to be charged under the state’s child pornography law. That would force them to register as sex offenders not only at the state level but through the federal Adam Walsh Act as well.


The New York City-based Village Voice had this stay about teenaged sexting: “… there’s no way to pin down for sure how many kids are actually doing this. But even if it is a lot, I have news: Teenagers do bad things, and they always have. They bully each other and they always have, and cell phones and the Internet simply make it easier. Why is everyone treating ‘sexting’ (which, I guarantee you no self-respecting teen actually calls it that) like something totally out of left field.


“In an ideal world, it wouldn’t be happening at all. As this story makes evident, kids can’t handle nude pictures of each other responsibly. But the endless hand-wringing about this is getting tired. It makes our society’s generation gap seem positively extreme. Have all adults totally forgotten what it’s like to be a teenager? Have kids really become that much more sadistic in the years since I’ve been out of middle school? Jesus. Everyone under the age of 18 should be sent off to a peaceful farm somewhere to wait it out.”


Sexting is a modern technology-driven problem facing young people. A hundred years ago it was the transition from mule to automobile. Our concern is that too many young people are going to become innocent casualties of the war between these two extreme, and it will indeed have long-term, devastating consequences on their futures. Thus far the sexting issue has been dealt with at the state level. And while we recognize the basic problem with states’ rights is that the states can rarely agree on anything (which is why this nation experienced a brutal civil war that killed more of our citizens than all our other wars combined), we are even more concerned that given Congress’ horrific handling of child pornography laws over the past two decades, that should federal legislation be considered on this issue that it be carefully crafted to both protect and educate our young people about sexting rather than treat them like hardcore child pornographers, destroying their young lives for hormone fueled errors in judgment.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law buy the Texas Board of Legal Specialization