Sexting Among Children; Criminal Behavior or Brash Sign of the Times

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair


First, and foremost, “sexting” among teenagers can be a crime. Second, it’s stupid, sophomoric behavior that can quickly ruin reputations, destroy employment opportunities, and cost a lot of money to deal with its legal consequences.


“Sexting” is a term, according to Urban Dictionary, created by the media which refers to the sending or posting of sexually suggestive text and images in cyberspace. The National Campaign to Prevent Teen and Unplanned Pregnancy and recently released the results from the first study ever conducted concerning the relationship between sex and cyberspace.


The study, Sex and Tech: Results From a Survey of Teens and Young Adults, produced some disturbing findings. For example, it found that a “significant number of teens (age 13 thru 19) have electronically sent, or posted online, nude or semi-nude pictures or video of themselves.” One in five of the 653 teens surveyed engaged in this risky behavior with 22% of the surveyed girls having engaged in sexting and 18% of the boys having done so.


This group of teens are even more heavily involved in sending sexually suggestive messages. 39% sent or posted sexually suggestive messages: 37% of the girls and 40% of the boys. 48% of the teens said they had received such messages.

While most of the sexting material was sent to boyfriends/girlfriends, some of the material was sent to those the teens want to “hook up with” or to someone they met online, which is the most dangerous form of sexting. The Sex and Tech study made these findings:


  • 71% of teen girls and 67% of teen guys who had sent or posted sexually suggestive content say they had sent/posted this content to a boyfriend/girlfriend.
  • 21% of teen girls and 39% of teen boys say they had sent such content to someone they wanted to date or hook up with.
  • 15% of teens who have sent or posted nude/semi-nude images of themselves say they had done so to someone they only knew online.


The study cautioned teens to think before they hit the “send” key. The sexually suggestive material will not remain private. 40% of the teens said sexually suggestive messages, originally intended to be private, were shown to them later, and another 20% said they shared such a message with someone other than the person for whom it was originally meant.

There is no “return” key once the “send” button has been hit—and the material may never, ever, exit cyberspace. As the Sex and Tech study put it: “Something that seems fun and flirty and is done on a whim will never really die. Potential employers, college recruiters, teachers, coaches, parents, friends, enemies, strangers and others may all be able to find your past posts, even after you delete them. And it is nearly impossible to control what other people are posting about you. Think about it: Even if you have second thoughts and delete a racy photo, there is no telling who had already copied that photo and posted it elsewhere.”


But teens, and their parents, must also realize that sexting can lead to federal and state criminal indictments resulting in possible imprisonment and mandatory sex offender registration. For example, the online Slate blog reported recently that three teenage girls (14 and 15) were charged in Pennsylvania in January 2009 with child pornography by sexting their boyfriends. The boyfriends were charged with possession of child pornography.


In yet another case, an Indiana teenager was charged with obscenity after he sent an image of his genitals to female classmates. Two other teenage girls—a 14-year-old in Michigan and a 15-year-old in Ohio—were also charged with obscenity because they sent classmates nude images of themselves. Slate reported that similar cases have been brought by prosecutors in Texas, Utah, Wisconsin, New York, New Jersey, Florida, Alabama, and Connecticut.


The author of the Slate article, Dahlia Lithwick, wrote: “One quick clue that the criminal justice system is probably not the best venue for addressing the sexting crisis? A survey of the charges brought in the cases reflect that—depending upon jurisdiction—prosecutors have charged the senders of smutty photos, the recipients of smutty photos, those who save the smutty photos, and the hapless forwarders of smutty photos with the same crime: child pornography. Who is the victim here and who is the perpetrator? Everybody and nobody.”


Law enforcement intervention in some cases became absolutely necessary because of the utterly irresponsible and unacceptable behavior of the teens involved. One Massachusetts case involved cyber-bullying of a teen who sent a picture of a naked 14-year-old to over 100 cell phones and another involved several New York teenagers who made crude animations and PowerPoint presentations of a picture of a naked 15-year-old.


But when laws are enforced to curtail the extreme actions of the few then the group will suffer as well. As Ms. Lithwick put it: “The real problem with criminalizing teen sexting as a form of child pornography is the great majority of these kids are not predators and have no intention of producing or purveying kiddie porn. They think they’re being brash and sexy, in the manner of brash, sexy Americans everywhere: by being undressed. And while some of the reaction to the sexting epidemic reflects legitimate concerns about children as sex objects, some highlights pernicious legal stereotypes and fallacies.


A recent New York Times article about online harassment, for instance, quotes the Family Violence Prevention Fund, a nonprofit domestic violence awareness group, saying that the sending of nude pictures, even if done voluntarily, constitutes ‘digital dating violence.’ But is one in five teens truly participating in an act of violence?”


The Times is correct to point out that there are definite psychological dangers involved in the foolish business of sexting. On March 6, 2009, the TODAY Show carried a report about a young Ohio woman named Jessica Logan. She sent nude photos of herself to her boyfriend who, after they broke up, sent the pictures to other high school girls. In July 2008 the 18-year-old hanged herself in her bedroom because of shame.


“She was vivacious. She was fun. She was artistic. She was compassionate. She was a good kid,” Jessica’s mother, Cynthia Logan, told TODAY’s Matt Lauer.


Cynthia Logan told Lauer that she had taken her daughter’s tragic suicide public in an effort to warn kids about the dangers of sexting—even with boyfriends who express undying love and devotion. The grieving mother said she had not known the depth of her daughter’s problem. She started getting letters from the school telling her that Jessica was skipping class. The mother took Jessica’s car and drove her to school each day but Jessica continued to cut class. She only told her mother that her problem involved harassment from the group of girls who had the photos. She didn’t tell her mother the nature of the photos. The group of girls with the photos were horrible, calling Jessica terrible names and throwing objects at her.

“She was being attacked and tortured,” Logan told TODAY.


“When she would come to school, she would always hear, ‘Oh, that’s the girl who sent the picture. She’s just a whore,’” Lauren Taylor, one of Jessica’s friends, told NBC News.


The tragedy in this story, as too often is the case, is that officials at the school Jessica attended were aware of the harassment but did little, if anything, to stop it. According to Cynthia Logan, one of the school officials told Jessica that the official would go to one of the 16-year-old girls who had the pictures and tell her to delete them from her phone and never speak to Jessica again. Ms. Logan wanted to talk to the girl’s parents but Jessica urged her not to, saying it would only cause her more ridicule.


“I just had a scan of the room, her closet doors were open,” Logan told NBC News. “And I walked over into her room and saw her hanging. The cell phone was in the middle of the floor.”


The immediate personal consequences of sexting can indeed be devastating: individual humiliation that can lead to social ostracism, even suicide, and criminal charges that can result in lifetime sex offender registration. The long term professional consequences can be just as bad: admission applications at desired universities rejected; employment opportunities sabotaged; and career advancement in later years terribly hindered.


Sexting is a dangerous thing for teens and parents—and we would hope that prosecutors will exercise the great care and caution before bringing criminal charges in these cases. It is time for prosecutors, the courts, and law enforcement to create diversionary programs designed to handle these cases outside the criminal justice system. “The bare all, tell all” youthful mindset is not criminal. It simply lacks direction. These kids don’t belong in courtrooms. They need education and supervision.


By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair