Sexting is increasingly common in our society, and increasingly difficult for our legal system to address. In the first part of this article, I shared a story illustrating the myriad perils faced by educators, school employees, parents, and students who send, receive, or duplicate sexually explicit images sent over mobile devices. Part 1 also covered how evolving technology and social attitudes compound uncertainty around the issue.

When considering the impact of sexting, we’re not just talking about reverberations from a cultural and technological shift. The criminalization of sexting among minors—particularly when it is consensual—raises constitutional questions. Last year, the Washington State Supreme Court upheld a child pornography conviction of a man who, as a 17-year-old, sent a sexually explicit selfie to an adult. By suggesting he was both victim and perpetrator of the crime, did the court violate the defendant’s right to due process? The American Civil Liberties Union thinks so. Others argue that sexting should be considered freedom of expression, that criminalization hinders parents’ rights to steer the upbringing of their children, or that the actions of law enforcement in sexting cases may infringe on individuals’ rights to privacy—as the Fourth Circuit held in a recent decision.

Legislatures in a number of states have passed laws with the aim of ameliorating or clarifying the issue. Several states, including Pennsylvania and West Virginia, designate sexting between minors as a misdemeanor or juvenile offense, while others prohibit courts from charging alleged minor offenders as adults. Some states offer juveniles the choice of avoiding prosecution by paying a fine, receiving counseling, and/or completing an educational course. And many states take a punitive approach to discourage the forwarding or disseminating of explicit images: Maryland’s “revenge porn” law, for instance, criminalizes the act of uploading sexually explicit content to the internet if the media reveals a person’s identity and is shared without their consent.

A bill that would have reduced the criminal penalties for minors who engage in sexting to a misdemeanor was introduced in Virginia this year, passed the Senate, but died in committee. However, another Virginia law—which was passed—requires high schools in the Commonwealth to add information about sexual harassment and the risks of sexting to their family life education curricula.

Regardless, sexting among minors remains a contentious and vexing issue throughout the country. Is it up to schools to educate students and develop their own disciplinary policies, or is this a matter better left to courts? What should be expected of students’ families, and how can a parent most effectively intervene? In “Youth Sexting: A Legislative and Constitutional Analysis,” published in the Journal of School Violence, Kallee Spooner and Michael Vaughn argue for an intersectional, case-by-case approach:

“The context in which the activity occurs should guide the response. A distinction must be made between adults enticing juveniles and youth voluntarily sending images. Incidents of coercion or exploitation should be treated more seriously than instances of voluntary and consensual activity. The harassment a youth might experience from peers cannot be equated with the harm that a child experiences as a victim of sexual abuse. In both situations, the youth is subject to negative emotions and effects, but the distinct contexts encourage different responses.”

Legal scholars, activists, educators, politicians, and law enforcement officials will certainly continue to advocate for different solutions—until the Supreme Court provides a definitive answer on this issue. For now, we should recognize that legal conjecture and conversations about the cultural implications of sexting often take a backseat to the immediate concerns about young people’s futures. Northern Virginia is a very competitive area for students, and families have enormous expectations of their children. As this article indicates, a student found to have engaged in sexting could face serious legal charges, in addition to a school suspension and a bad disciplinary record. Both can have a profoundly negative impact on college admissions. When one sexting incident can keep a Fairfax student out of an institution like Harvard, what measures should parents take, and what messages should they communicate to their children? How should legislators and law enforcement determine how to bring adults who commit heinous acts to justice while sparing minors found guilty under the same statute?

As is the case with bullying, these are complex questions that require complex answers. Parents and school officials aiming to effectively address sexting, drug use, bullying, or any complex legal issue should seek assistance from an experienced education attorney. In my practice at Offit Kurman, I represent clients before all state courts in Virginia, government agencies, and local governments, school boards, and departments. My clients include families, individuals, area education associations, and businesses and other trade and professional organizations.

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

sstone@offitkurman.com | 703.745.1813

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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