Out of Control Policy Blog

Some Sense on Sexting

Bucking a trend seen in other states, Texas lawmakers are taking steps to separate teen “sexting,” the sending and receiving sexually explicit photos via cell phone or email, from child pornography.

A bill proposed by State Sen. Kirk Watson of Austin, and backed by Texas State Attorney General Greg Abbott, would classify sexting as a Class C misdemeanor for first time violators under 18. Under current law, sexting is a Class C felony carrying penalties of two to 10 years in prison, a fine up to $10,000 and lifelong registration as a sex offender.

The Lone Star State deserves credit for taking a sensible approach to addressing what is without doubt stupid behavior that comes with serious consequences, but is far from the predation that child pornography laws are intended to target.

As the Houston Chronicle reports, instead of sending young people to jail for sexting, the bill, SB 407, would authorize judges to sentence minors — and one of the minor's parents — to participate in an education program about sexting’s consequences.

The new law also would allow teens to apply to the court to have the offense expunged from their records.

“This bill ensures that prosecutors — and, frankly, parents — will have a new, appropriate tool to address this issue,” [Abbott] said. “It helps Texas laws keep up with technology and our teenagers.” According to the Chronicle, Texas has never prosecuted a teen for sexting under child porn laws.

Texas joins Vermont, Illinois, Utah and Ohio among states seeking to decriminalize sexting.  These states stand in stark contrast to others where attorneys general apparently want to use the threat of lifelong sex offender designation as a bludgeon.

In northeastern Pennsylvania, a prosecutor recently threatened to file child porn charges against three teenage girls who authorities say took racy cell-phone pictures that ended up on classmates' cell phones. In New Jersey, a 14-year old girl was charged with distributing child pornography after she posted nude pictures of herself on MySpace, a move that brought criticism from Maureen Kanka, whose daughter Megan became the namesake of Megan’s Law after she was raped and killed by a twice-convicted sex offender.

The teen needs help, not legal trouble, Kanka told the Associated Press. “This shouldn't fall under Megan's Law in any way, shape or form. She should have an intervention and counseling, because the only person she exploited was herself.”

Finally, prosecuting sexting as child pornography creates problems in the long-term because it defines predation down. We don’t want to give truly dangerous child predators an opportunity to credibly dismiss their sex offender status as a result of poor teenage judgment when it came to pressing the “send” button on a cell phone. Yet, if overzealous prosecutors keep this up, the cynics will be predicting that, in the future, everyone will be a registered sex offender. That’s not a very funny joke.


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