What the Law Says (and Doesn’t Say) About Sexting in 2018 | Part One
Throughout my career, I have represented numerous school employees, students, and students’ families, as well as education associations, businesses, and other professional organizations. The following story is an amalgamation of details from some of these experiences.
The case began when the school received a report from a parent whose child had engaged in sexting: that is, the sharing of sexually explicit images or messages over mobile phones and other electronic devices. The student’s photos had been copied and circulated, and the parent demanded the school take action. The school got in touch with the police and, in the meantime, assembled an internal team to get to bottom of things.
The team tracked down the individuals involved within the situation, obtained their phones, and found the images. My client, a member of the team, decided to document the images by photographing them. Later, when the school shared the results of its investigation with the police, officers saw the picture and arrested my client on charges of possession of child pornography.
We fought the case in court. Ultimately, the charges were dropped, but only because the image in question — the photo of the photo — did not meet the complete definition of pornography.
I share this story to illustrate the magnitude and complexity of such cases as they relate to modern technology and the school environment. This is not a once-in-a-lifetime situation, but the kind of case that can — and does — happen to teachers and administrators in Virginia and across the country. Sexting has presented difficult legal challenges and questions to school administrators, teachers, and parents — not to mention students, whose developing brains may inhibit their capacity to fully consider the consequences of their actions. Indeed, these cases exist at a dynamic nexus of law, psychology, and technology. The constant stream of new devices entering the market is coinciding with emerging neuroscience that calls into question long-held societal beliefs about adolescence and maturity, and the law has been slow to catch up.
I handled some of the first legal disputes that involved sexting, and in my experience, one of the most challenging aspects of these cases is the issue of child pornography. Courts have struggled over whether adult standards should be applied to minors: Is it justified to label a 16-year-old a sex offender for engaging in sexting? Should law enforcement have the power to subpoena and investigate that 16-year-old? In a recent case, a prosecutor obtained a search warrant to photograph a teenager’s private area in an effort to prove he photographed himself naked and texted to a girlfriend.
At the same time, administrators and teachers are facing the fact that they cannot always keep devices out of the educational environment. On the contrary, there is ample opportunity to embrace technology and use it as a teaching tool — so much so that in Fairfax County, Virginia, students who don’t have access to technology are considered to be at a disadvantage. And therein lies another tricky question: How can we provide students with the technology they need to succeed, without increasing the chances of cyber-bullying or sexting?
It is important to recognize that sexting is not entirely new behavior. Sexual exploration is an ordinary part of growing up but it is not an exclusively adolescent phenomenon, either. A Kinsey Institute survey of over 140,000 people revealed that 74% of American adults have traded sexts with their partners. Given the prevalence of sexting in our national news cycle, that number may not come as a surprise. Remember when the FBI seized former Congressman Anthony Weiner’s computer as part of a sexting criminal investigation during the 2016 Presidential election? Or consider, in the wake of the #MeToo movement, the outpouring of stories about sexual harassment, many of which involve people who received unwanted sexts, or who were coerced into sending them.
In the second part of this article, I will explore the efforts of lawmakers in several states, including Virginia and Maryland, are taking to address this increasingly complex issue. In the meantime, if you have a question about this or any education law matter, or if you need legal representation or services, please contact me.
ABOUT STEVEN STONE
Mr. Stone represents clients before all state courts in Virginia, before government agencies, and before local governments, school boards, and departments. His clients include area education associations, businesses and other trade and professional organizations; Families and individuals. He also has provided legislative and lobbying services on behalf of a wide variety of groups – labor, business, attorneys and doctors. He takes pride in the fact that most of his cases are quietly resolved in the best interest of his clients. His philosophy is that every reasonable effort should be made to settle legal claims or disputes in a way that protects his clients’ rights, and that costly litigation and adversarial proceedings should always be the last resort.
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