Most states have yet to update laws to account for minors exchanging explicit selfies
By Jonathan Drew and Mitch Weiss
Associated Press
FAYETTEVILLE, N.C. (AP) — When authorities discovered that a high school couple had sent each other nude selfies, the two 16-year-olds were plunged into a legal morass with the potential to be branded sex offenders for life.
The Fayetteville teens were accused of being both the victims of child pornography and the perpetrators of the crime. And under a quirk in the law, the legal system treated them as adults for purposes of prosecuting them, but also considered them minors by deeming their selfies child pornography.
The case illustrates the quandary authorities face with sexting cases. Most states have yet to update child pornography laws to account for minors who are caught exchanging explicit selfies. The laws, some written decades ago, carry stiff penalties including prison time and a requirement to register as a sex offender.
“No one even imagined how easy it would be for anybody to have a little device in their pocket with pictures like this,” said Diana Graber, co-founder of Cyberwise, a group that teaches online safety for parents and teachers.
So far, more than a dozen states have reduced penalties in recent years for minors convicted of sexting. Texas, for example, made sexting a misdemeanor in 2011 for teenagers 17 years or younger.
The North Carolina case began in October 2014 when investigators were looking into a suspected statutory rape, said Sgt. Sean Swain of the Cumberland County Sheriff’s Office. The 16-year-old boy wasn’t considered a suspect or witness, but authorities thought information about the case might be on his phone. Swain said the teen’s mother allowed them to search his phone without a warrant.
A sheriff’s office investigator found an explicit picture of his girlfriend and determined she was under 18, initiating the sexting investigation, Swain said.
It led to months of uncertainty for the teens, who are now 17, until they finally struck deals in recent weeks to reduce the charges and give them a pathway to clearing their records. The boy was temporarily suspended from his high school football team, and the case has made national headlines within the last month.
Uproar over the case has stemmed from the fact that both were charged in February with multiple counts of sexual exploitation of a minor. Four of the boy’s charges were related to photos he took of himself, and a fifth was related to the image of his girlfriend.
The girl was charged with two felony counts related to photographing herself.
Under the deal with prosecutors, the charges were reduced to misdemeanor counts of disseminating harmful materials to a minor. In July and September, respectively, they were given a year of probation during which they must stay in school, abstain from drugs or alcohol and agree not to possess a cellphone.
If they complete the agreement, the charges will be dismissed and they can apply to have the case expunged.
“What they were charged with initially, the consequences were much too serious for the conduct,” Cumberland County District Attorney Billy West said.
The Associated Press generally doesn’t name crime suspects who are underage. The teens and their parents didn’t respond to requests for comment, nor did the girl’s attorney. The boy’s attorney declined to comment.
West said his office typically handles sexting cases by reducing the charges and allowing dismissals after certain steps are followed. He estimated his office has handled about a dozen or such cases in the past year. Others are handled in the juvenile system.
He wasn’t aware of any resulting in felony convictions or a sex offender registry requirement.
He said the case began getting attention because the boy was a well-known high school football player. Indeed, The Fayetteville Observer’s first story about the case was focused on his suspension from his team.
Responding to criticism, West said it’s up to lawmakers to decide whether to change child pornography laws.
“Dissemination to third parties is where you get into very serious issues. Unfortunately the only way to keep something from being disseminated is for it not to be created in the first place,” he said. “So it does create a bit of a quandary in the law.”
State Rep. Paul Stam, R-Wake, who helped pass a law in 1990 to help crack down on child porn, said it could be re-crafted to address selfies, but he’s worried about making any exemptions too broad.
Sexting was part of a 2012 study by University of New Hampshire researchers who examined trends in arrests for child pornography production. The researchers conducted a national survey of law enforcement agencies and concluded that when it comes to sexting, “most police do not arrest youth in cases that come to police attention.”
Elizabeth Englander, a Bridgewater State University psychology professor, said prosecuting minors for sexting can have a negative psychological impact.
“Where you have two kids who are in a relationship, they’re not trying to exploit each other ... and they’re exchanging these kinds of photos, it seems to me that the cure is worse than the disease,” she said.
