As recently as a year ago only 20% of teens were engaged in sexting. Now a new MTV-AP poll of teens aged 14 to 17 reveals that the practice is growing with 24% of underage teens involved in some kind of naked sexting.
Here are some highlights from the survey:
- Girls are slightly more likely to have shared a naked photo or video of themselves (13%) than boys (9%).
- Those who have shared a naked photo or video mostly report that they initially sent the photo to a significant other or romantic interest. However, 29% of those who sent sexts report sending them to people they only know online and have never met in person. 24% sent sexts to people they wanted to date or hook up with.
- While girls are more likely to share naked photos or videos of themselves, boys are more likely to report receiving a naked photo or video of someone else that has been passed around—14% vs. 9%.
- 61% of those who have sent a naked photo or video of themselves have been pressured by someone else to do so at least once.
- Those involved in sexting are likely to use words like “flirty”, “exciting”, “hot”, “fun” and “trusting” to describe the practice.
Perhaps the most surprising (or not) statistic is that almost half of sexually active young people report being involved in sexting. While their underage sexual activity is probably legal under state law, creating a visual record of ANY teenage sexual activity is illegal production of child pornography under federal law and subjects the creator, distributor and recipient to a mandatory minimum five year sentence.
Sexual activity includes actual or simulated masturbation, sexual intercourse, or a “lascivious exhibition of the genitals or pubic area.”
Parents can be liable too. Any parent who “knowingly permits” such activity “or has reason to know” such activity is occurring faces a 15 year mandatory minimum sentence in a federal prison.
Here’s an outline of potential federal criminal liability in a typical sexting scenario:
17 year old John challenges his 15 year old girlfriend Karen to masturbate for him on her webcam. Karen takes off her clothes and simulates masturbation in front of the webcam. John and his friend Sam record the episode on a laptop computer. The following day Sam asks his buddy Tony if he wants to see the video. Tony does and Sam emails it to him. Later that same day Karen’s mom Debbie discovers a still image from the webcam masturbation on Karen’s cell phone.
Under current federal law, John is guilty of violating 18 U.S.C. 2251 which prohibits an individual from “persuading, inducing, enticing, or coercing any minor to engage in sexual activity” including simulated masturbation. If convicted, John will receive a 15 year mandatory minimum sentence, registration as a sex offender, and up to lifetime supervision by a probation officer.
While Karen will probably escape liability for production of child pornography, she is guilty of “knowingly transporting by computer a visual depiction of a minor engaging in sexually explicit conduct” which is a 5 year mandatory minimum federal sentence, registration as a sex offender, and up to lifetime supervision by a probation officer. 18 USC 2255 and 18 USC 2255A.
Sam is guilty of pandering child pornography under 18 U.S.C. 2251 by “offering to distribute a visual depiction of a minor engaging in sexually explicit.” He’ll join his friend John in federal prison for the mandatory minimum 15 years.
Tony is guilty of receiving child pornography in violation of 18 USC 2252A and will receive a 5 year mandatory minimum sentence, plus registration as a sex offender and up to lifetime of probation monitoring.
Karen’s mom Debbie also faces federal criminal liability. If, after finding the incriminating image on Karen’s phone, she continues to “knowingly permit” Karen “to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct,” she will join John and Sam in federal prison for 15 years. 18 U.S.C. 2251. Better yank out that web cam mom! And the video cell phone. And the Flip video cam. And the Canon SureShot. And…you get the picture (hopefully not).
These are theoretical hypothetical possibilities and it is unlikely that any federal prosecutor would ever bring such a case. These are, however, very real crimes with substantial criminal penalties. Federal prison is far cry from the “flirty exciting hot fun” most teenagers experience while sexting.
The question remains, should federal law change to protect Karen? If so, what about her boyfriend John? Should Sam and Tony escape liability? What about permissive parents like Debbie? And what if Karen was 13 instead of 15? Or 12? What if John was 18 or 20?
Any federal exception for sexting needs to take into account many complex scenarios and aggressive defense attorneys who will use any opening in the law to exempt real pedophiles from criminal liability.