Sexting and Youth: Achieving a Rational Response

Abstract

The term �sexting� is a combination of two terms �text� and �sex�. The term is being
applied to situations to sending self-created nude or semi-nude sexually provocative images or sexually
explicit text. Most of the focus has been on sending nude images-because these are far more likely to
be more widely disseminated and because the distribution of these images can place young people at
higher risk (the term is also, unfortunately being applied to situations where adults are sending nude
images or explicit text from minors. This is an inappropriate use of the term. These activities should be
called what they are: exploitation of a minor). This document will outline the research findings about
this phenomenon, discuss the concerns about current degree of overreaction, address legal issues and
provide recommendations for changes in criminal statutes and for the establishment of an effective
multidisciplinary approach to investigate and intervene in these situations."

Full text

Journal of Social Sciences 6 (4): 542-562, 2010
ISSN 1549-3652
© 2010 Science Publications
542
Sexting and Youth: Achieving a Rational Response
Nancy E. Willard
Center for Safe and Responsible Internet Use, United States of America
Abstract: The term “sexting” is a combination of two terms “text” and “sex”. The term is being
applied to situations to sending self-created nude or semi-nude sexually provocative images or sexually
explicit text. Most of the focus has been on sending nude images-because these are far more likely to
be more widely disseminated and because the distribution of these images can place young people at
higher risk (the term is also, unfortunately being applied to situations where adults are sending nude
images or explicit text from minors. This is an inappropriate use of the term. These activities should be
called what they are: exploitation of a minor). This document will outline the research findings about
this phenomenon, discuss the concerns about current degree of overreaction, address legal issues and
provide recommendations for changes in criminal statutes and for the establishment of an effective
multidisciplinary approach to investigate and intervene in these situations.
Key words: Sexting, child pornography, school officials, nude or semi-nude, sexual harassment,
district attorney
INTRODUCTION
Among teens, the sexting phenomenon appears to
be the result of a combination of factors: digital
imaging technology that can easily capture and send
images, impulsivity, raging hormones, peer or partner
pressure and teen’s biological incapability of effectively
predicting the potential negative harmful consequences
of their actions.
However, a November 2009 article on the AARP
web site, entitled C*U*2nite: Sexting not Just for Kids,
noted (Leshnoff, 2009):
More and more of the 50 + set, both single and
married, are using text messaging to spice up
their sex lives. Boomers, often sandwiched
between teenagers, aging parents and busy
work schedules, are taking advantage of the
new technology because it’s fast, easy and fun
Given this apparent cross generational adoption of
this behavior, there are clear indicators that this
behavior should be considered within the range of
normative human sexual behavior. This being said,
there are significantly greater risks when teens engage
in this behavior. The risks are associated with the
mercurial nature of their personal relationships, the fact
that teens can more easily be persuaded to provide such
images, the degree to which these images can become
widely disseminated and the resulting damage to the
reputation of the person and the potential that these
images can place young people at greater risk of
exploitation.
Research insight: Three recent studies have outlined
this new phenomenon.
Sex and tech: The National Campaign to Prevent Teen
and Unplanned Pregnancy and CosmoGirl.com
commissioned a 2008 survey of teens and young adults
to explore electronic activity
(http://www.thenationalcampaign.org/sextech/). The
Sex and Tech survey of young people ages 13-26
found:
• A significant number of teens (ages 13-19) have
electronically sent or posted online, nude or semi-
nude pictures or video of themselves. 20% of teens
overall, 22% of teen girls, 18% of teen boys and
11% of young teen girls (ages 13-16)
• Sending and posting nude or semi-nude photos or
videos becomes even more frequent as teens
become young adults (ages 20-26). 33% of young
adults overall, 36% of young adult women and
31% of young adult men
• Sexually suggestive messages (text, email, IM) are
even more prevalent than sexually suggestive
images and involvement also increases with age.
39% of all teens, 37% of teen girls, 40% of teen
boys and 48% of teens say they have received such
messages. 59% of all young adults, 56% of young

J. Social Sci., 6 (4): 542-562, 2010
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adult women, 62% of young adult men and 64% of
young adults say they have received such messages
• The images are frequently being sent in the contest
of personal relationships. 71% of teen girls and
67% of teen guys who have sent or posted sexually
suggestive content say they have sent/posted this
content to a boyfriend/girlfriend. 21% of teen girls
and 39% of teen boys say they have sent such
content to someone they wanted to date or hook up
with.15% of teens who have sent or posted
nude/semi-nude images of themselves say they
have done so to someone they only knew online
• The images are frequently shared beyond the
original recipient. 36% of teen girls and 39% of
teen boys say it is common for nude or semi-nude
photos to get shared with people other than the
intended recipient
• Pressure from partners or peers is clearly a factor-
especially for the teen population. 47% of teens
(38% of young adults) say “pressure from guys” is
a reason girl and women send and post sexually
suggestive messages and images. About 24% of
teens (20% young adults) say “pressure from
friends” is a reason guys send and post sexually
suggestive messages and images
Digital abuse survey: The MTV-associated press poll
digital abuse survey, released in 2009 found
(http://www.athinline.org/about Scan down the page to
find the links to the reports):
• 24% of 14-17 year olds reported some involvement
in sexting, either sending or receiving. 33% of 18-
24 year olds had some engagement
• 10% of 14-24 year olds have sent a sexual image.
Unfortunately, this data was not broken down into
teen and young adult populations
• Most sent the image to a significant other or
romantic interest. But 24% sent the image to
someone they wanted to hook up with and 29%
sent the image to someone they only knew online.
Again, this data was not broken down into teen and
young adult populations
• Of significant concern, 61% of those who sent an
image said they had been pressured by someone
else to do so. This data was not reported based on
gender
Teens and sexting: In a national survey of teens ages
12-17 that uses cell phones, the Pew Internet and
American Life Project Teens and Sexting study also
released in 2009 found
(http://pewresearch.org/pubs/1440/teens-sexting-text-
messages):
• 4% of teens said they had sent sexually suggestive
nude or nearly nude images of themselves to
someone else via text messaging (if you look
closely at the age group differences and the
increase in activity with age, it appears that the
Pew and MTV findings are roughly equivalent for
the teen population. Pew reported on youth ages 12
to 17 and MTV reported on youth ages 14-24. In
Pew 8% of 17 year olds had sent an image. In
MTV 10% of 14 to 24 year olds had sent an image.
The earlier survey reports were higher. It is
unknown why the difference-although one theory
may be that the incident rate is rapidly diminishing.
Self-report surveys always have a degree of
unreliability especially when assessing behavior
that is not considered to be “appropriate”)
• 15% of teens said they had received sexually
suggestive nude or nearly nude images
• Older teens were much more likely to send and
receive these images. 8% of 17-year-olds had sent
images and 30% had received them
The focus groups revealed that there are three main
scenarios for sexting:
• Exchange of images solely between two romantic
partners
• Exchanges between partners that are shared with
others outside the relationship
• Exchanges between people who are not yet in a
relationship, but where at least one person hopes to
be
Common findings: Thus, across these three studies,
very common patterns are emerging:
• A minority of teens are engaging in sexting
activity. Involvement clearly increases with age
• A significant amount of this activity is related to
personal relationships. This includes current
relationships and desired relationships
• Boys and girls are participating in this activity at an
equivalent rate
• A significant portion of teens report that pressure
by others to provide these images is an issue
Kinds of situations: As noted in these studies, the most
common sexting scenarios involve exchanges between
romantic partners or where there is an interest in a

J. Social Sci., 6 (4): 542-562, 2010
544
partnership. These exchanges, which are intended to be
private, can result in a wider dissemination of the
image. This is sometimes by mistake, but also
sometimes in a malicious manner, as will be discussed
below. The term “desired relationships” could include
situations that range from one teen desiring a close
personal relationship with a specific other person to
situations where a teen is engaging in a wide-ranging
search for sexual “hook-ups”.
With combined insight from research, news articles
and reported incidents, the following kinds of situations
have been noted as occurring.
Developmentally normative:
Not intended to cause harm, but mistakes could lead
to distribution: (Note, all of these activities are similar
to what young people have engaged in, throughout
time, in the course of normal sexual development-but
before digital media technologies were available for
recording and transmitting evidence of this behavior):
• Exchange within a romantic partnership or a
desired romantic partnership where neither partner
pressured for the image or distributed the image
beyond each other
• Exchange within a romantic partnership where
neither partner pressured for the image, followed
by a small private distribution of image by one
partner to some friends to “show off”. This is done
with no intent for the image to be distributed
further or to cause harm, but sometimes the image
is disseminated by a third party recipient
• The digital media enhanced version of “show me
yours and I’ll show you mine”, “spin the bottle”, or
a “truth or dare” game. There is no initial intent to
distribute further or to cause harm, but sometimes
things get out of hand and the images are
disseminated
• Creation and dissemination of image or materials
for entertainment, attention-getting purposes, or to
“gross others out”-e.g., a “bawdy” video created at
a party
Harassment:
Intended to cause harm to person depicted or that
constitutes harassment:
• Malicious, widespread distribution
• Peer pressure or peer trickery-with intent to
distribute
• An image taken under circumstances where
privacy is expected, like in a locker room
• An image that was being retained privately, such as
an image created and never disseminated or image
that was shared only with a partner, that is released
by someone else who gained access to device on
which the images were stored
• Fake image created by merging a photo of a teen
on a nude body image found elsewhere
• Image sent as a form of harassment-to a recipient
who does not want to receive the image
At-risk:
Teen depicted is engaging in at-risk behavior:
• Intentional dissemination of an image by the teen
depicted as attention-getting behavior or to
advertise sexual availability with like-age peers
• The teen depicted is engaging in solicitation of
sexual “hook-ups” with older teens or adults or is
engaged in teen prostitution
Exploitation:
The situation involves sexual abuse or other
significant harm:
• Demand for an image by partner in an abusive,
controlling relationship
• Revengeful distribution by a partner after a break-up
• Blackmail threat by recipient of image to disclose
the image to others unless the person depicted
engages in some other action. Frequently, this is an
abusive partner and with a demand to engage in
sexual activity
• Sexual solicitation of a younger teen by an older
teen
• Abusive or coercive acquisition of image, with
intent to widely distribute
Revenge porn/cyberbully sexting: Specific note must
be made about malicious use of these images. Revenge
porn has an entry in the Urban Dictionary:
(http://www.urbandictionary.com/define.php?term=rev
enge%20porn) “Homemade porn uploaded by ex
girlfriend or (usually) ex boyfriend after particularly
vicious breakup as a means of humiliating the ex or just
for own amusement”. There are web sites set up to
allow for such postings. Conduct a search on the term
“revenge porn”. Here are some web site descriptions:
• ExGirlfriend Revenge: She loved getting naked for
her bf before cheating on him so he decided to send
this to us to post!
• The hottest topic on relationships becomes one of
the most popular porn video downloads. Watch

J. Social Sci., 6 (4): 542-562, 2010
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jilted lovers get their revenge as they submit
hardcore porn
Revenge porn is affecting both adults and teens.
Several teen incidents are described as follows: Alex
Phillips, 17, of La Crosse, Wisconsin posted two nude
images of his ex-girlfriend on his MySpace page
(http://www.citmedialaw.org/threats/wisconsin-v-
phillips). His girlfriend had emailed the pictures to him
when they were dating, but the relationship had broken
up and she started seeing another guy. In the captions,
Phillips exceptionally nasty comments. The State
charged him with him with criminal libel, possession of
child pornography, sexual exploitation of a child and
causing mental harm to a child. In January 2009,
Phillips pled guilty to causing mental harm to a child.
In Thurston County, Washington, three teens were
arrested in January 2010 (Pawloski, 2010). A middle
school girl had sent a nude image to her boyfriend.
They broke up. He sent the image to one girl, who sent
it to another, who sent it to many.
Cyberbully sexting is a term developed for use in
this study. Among teens peer-led bullying has taken on
a new dimension. The objective of a group or individual
bully is to trick an intended target into providing an
image that is then send this to others or used for
blackmail. Several variations include invasion of
privacy by obtaining an image without permission such
as in a locker room or finding an image on the target’s
device and forwarding it and creating a fake image
merging a photo of a person’s head onto a nude image
and creating a fake profile of a “hot teen” to trick
someone into providing an image. These are some
privately reported incidents:
Freshman girl was bugged and bugged by an
upper classman boy to send him a nude image.
Finally she did. He then sent it to others at the
school
A girl student left her cell phone on the desk in
the library where she was working with a
group of students. One student grabbed the
phone, looked through the stored images,
found a nude image and sent it to his own
phone, from which he then forwarded to many
other students
A student created a fake profile of a “hot boy”
and was encouraging girl students to send him
nude images
What is becoming evident as these sexting
situations come to light is that the ones that appear to
lead to the widest dissemination and greatest emotional
harm are those that involve the malicious dissemination
either after a relationship break-up or in the context of
cyberbullying.
As noted in an article discussing this phenomena
(Mordan, 2008): “Revenge porn is difficult to prosecute
because there are no statutes specifically outlawing the
practice”. Obviously, this is something that must be
corrected-for teens as well as adults.
Underlying factors:
Sexualization of youth: In February, 2007, the
American Psychological Association Task Force on the
Sexualization of Girls issued a report that concluded
that the proliferation of sexualized images of girls and
young women in advertising, merchandising and media
is harmful to girls’ self-image and healthy development.
This report noted investigated the concerns about
sexual media found in virtually every form of media,
including television, music videos, music lyrics,
magazines, movies, video games and the Internet, as
well as advertising campaigns and merchandising of
products aimed toward girls.
As noted in the press release for the report:
Research evidence shows that the sexualization of
girls negatively affects girls and young women across a
variety of health domains:
• Cognitive and emotional consequences:
Sexualization and objectification undermine a
person’s confidence in and comfort with her own
body, leading to emotional and self-image
problems, such as shame and anxiety
• Mental and physical health: Research links
sexualization with three of the most common
mental health problems diagnosed in girls and
women--eating disorders, low self-esteem and
depression or depressed mood
• Sexual development: Research suggests that the
sexualization of girls has negative consequences on
girls’ ability to develop a healthy sexual self-image
While the focus of this report was on the harm to
girls, surely, the proliferation of sexualized images is
also affecting boy’s self-image and attitudes, as well as
their perceptions about girls and appropriate sexual
behavior.
It is necessary to more effectively to challenge this
pervasive provocatively sexual messaging directed at
young people. We must also ensure that young people
gain skills in understanding and rejecting these
influences and that they gain the insight and personal
relationship skills to effectively negotiate the terrain as
they are maturing sexually.

J. Social Sci., 6 (4): 542-562, 2010
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Differences between boys and girls: As noted, both
boys and girls appear to be engaging in this activity in
equivalent numbers. However, it appears that girls are
more likely than boys to be pressured to provide such
images. There also appear to be significant differences
in how these situations play out and are perceived by
adults (for an additional example, the APA report
focused on sexualization of girls and failed to address
the concerns of the sexualization of boys).
In news stories that address incidents where the
image of a teen girl has been disseminated concerns are
expressed about the damage to the girl’s reputation, that
this image will end up being trafficked in child
pornography collections, or that the girl is at risk of
being contacted by an online predator. Also, girls or
women are far more likely to be the subject of
retaliatory harm on the revenge porn sites.
In stories reporting on incidents related to images
sent by boys there is rarely a concern expressed about
potential harm to the boy’s reputation or concern about
the potential of exploitation. The reaction appears to
range from considering the transmission of such images
to be normative behavior to considering boys to be sex
offenders.
Several examples of this phenomena are illustrated:
On January 15, 2010, the US Court of Appeals for the
3rd Circuit heard arguments in the case of Miller v.
Skumanick (Duffy, 2010). This case originated 2008
when a school district learned that some nude and semi-
nude images of girls were circulating, confiscated
students’ cell phones and turned the photos in question
over to the district attorney, Skumanick. Skumanick
sent a letter to the girls and their parents, offering an
ultimatum. They could attend a five-week re-education
program of his own design, which included topics like
“what it means to be a girl in today’s society” and
would also be placed on probation, subjected to random
drug testing and required to write essays explaining
how their actions were wrong. If the girls refused the
program, they would be charged with felony child
pornography.
The images of the girls whose parent’s challenged
this threat involved one image of two girls in their
training bras, taken at a slumber party and another of a
girl coming out of the shower who was partially
wrapped in a towel. Another image was of a girl in a
bathing suit that Skumanick indicated was child
pornography because she was posing “provocatively”.
The parents of three of the girls refused this forced
education and contacted the American Civil Liberties
Union (The TRO and all of the briefs are on the ACLU
site at: http://www.aclupa.org/legal/
legaldocket/milleretalvskumanick). In March 2009, a
federal judge granted a temporary restraining order
preventing the district attorney’s office from going
ahead with any prosecution
(http://www.pamd.uscourts.gov/opinions/munley/09v54
0.pdf). On January 15, the US Court of Appeals for the
3rd Circuit heard arguments on an appeal from this
TRO.
An interesting note was pointed out in an ACLU
blog (Keelty, 2010). The girls who appeared in the
photos were threatened with charges of child
pornography. If the district attorney considered these
images to be pornographic, why were there no charges
filed against the boys who were transmitting them?
Reportedly, when before the Third Circuit, the attorney
for the district attorney explained how, after the girls
were photographed, “high school boys did as high
school boys will do and traded the photos among
themselves”.
Also in this case, the district attorney argued that it
was necessary threaten the girls with felony prosecution
because by creating these images they had placed
themselves at risk of sexual predation (Brief for
Skumanick. On the ACLU site).
By contrast, is the story of Phillip Alpert (Feyerick
and Steffen, 2009). Philip had just turned 18. He had
gotten into an argument with his 16 year old girl friend
and in a moment of anger send a naked photography of
her to many friends and family. Alpert was arrested and
charged with sending child pornography, a felony. He
pleaded no contest and was convicted. He was
sentenced to five years probation and is required by
Florida law to register as a sex offender.
Another story is that of Evans Cesar (Alspach,
2010). This 18 year old Brockton High student was
arrested because he was found to have a graphic sexual
video on his cell phone. The video was of a male and
female who appear to be teenagers or young adults and
depicted oral sex. The students said the video was
widely circulating in school. Cesar said he received the
video, but did not send it.
On initial analysis, most adults would likely think
that girls are more risk from sexting. Both are at risk.
Teen girls appear to be more likely to be pressured to
provide images, to have the images spread with
resulting damage to their reputation, to be the recipient
of retaliatory distribution and to place themselves in a
position for further potential exploitation.
The mixed messages given to teen boys around this
issue place them at exceptionally high risk. Many adults
are likely to consider teen boy interest in these images
and distribution behavior to be normal behavior.
Because of this perception, teen boys are not likely to

J. Social Sci., 6 (4): 542-562, 2010
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consider the potential criminal ramifications. Especially
when boys turn 18, they are at a significantly higher
risk of a life and future destroying action if they send a
nude image to a minor, ask for a nude image from a
minor, or distribute a nude image of a minor. They are
the ones who will be arrested, prosecuted and required
to register as a sex offender. One day, “boys will be
boys”-the next, they are registered sexual offenders and
their life is destroyed.
Overreaction and techno-panic: Although published
before the very recent overreaction about sexting, a
review written by Chaffin (2008), Professor of
Pediatrics, University of Oklahoma Health Sciences
Center of the book, An American Travesty: Legal
Responses to Adolescent Sex Offending (Zimring),
frames the challenge of overreaction that we are
currently witnessing
(http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/
zimring1004.htm):
This is not a good time in history to be a
teenager caught engaging in illegal sexual
behavior. Although proponents might argue,
with some reason, that our current and very
aggressive legal and treatment response to
these youth represents an improvement over
years of blindness and silence, it is almost a
given that advocacy tends to be followed by
excess. “Boys will be boys” has given way to
moral panic about sex offenders and
perceptions of these youth as uniquely
dangerous, recidivistic and possessed by the
demon of hidden sexual abnormalities which
can be driven out only by aversively
overpowering the resistance of the possessed
and his family. Youth may undergo years of
compelled therapy, in which they must
conform their thinking to a therapy-model
which assumes that their behavior is part of a
compulsive and repetitive “cycle”. They may
be required to keep journals of deviant sexual
fantasies and, most of all, required to confess.
Confess their deviancy and differentness.
Confess their past offenses-incriminating
themselves if need be. Confess that their
ostensibly normal social behavior is “victim
grooming”. Confess that their motives are rarely
benign. Confess that they are and always will be
a sex offender. Failure to espouse the correct
beliefs about oneself as different, deviant and at
continual risk may be grounds for loss of basic
freedoms and sanctions
... No other type of juvenile offender is viewed
with such suspicion and no other type of
juvenile offender experiences comparable
exceptions to customary juvenile justice and
treatment philosophies
Concerns expressed by adults related to youth use
of the Internet and other digital media can be aptly
characterized as Techno-Panic-heightened level of
concern about the use of contemporary technologies by
young people that is disproportionate to the empirical
data on the actual degree of risk (Roush, 2006; Cohen,
1972). Since 1995, the Techno-panic eras related to the
Internet and cell phones have been: pornography,
predators, cyberbullying and now sexting. In fact, it
appears that the Techno-Panic related to sexting is a
culmination of all of the other panics.
By way of example, in 2000, the Crimes Against
Children Research Center (CACRC) issued a report on
a Youth Internet Safety Survey (Finklehor et al., 2001).
This report stated that: “Almost one in five (19%) of the
young Internet users surveyed received an unwanted
sexual solicitation in the past year”. While these
findings were widely reported as situations where
dangerous adult predators were soliciting youth, In fact,
the term “sexual solicitations” included unwanted
communications of a sexual nature. Forty-nine percent
of those communications came from other teens and
only 4% were identified as coming from older adults.
The vast majority of youth were not distressed and all
effectively handled the situation. A later study found
that 1 in 7 youth had “been sexually solicited” with
similar underlying findings.
Despite the fact that the overwhelming majority of
these situations could more appropriately be
characterized as sexual harassment by teens, young
adults, or possibly teens pretending to be young adults,
inaccurate information about this study is prevalent. On
the Florida Attorney General Child Predator
CyberCrime Unit web site is the following statement
(http://myfloridalegal.com/pages.nsf/Main/DF75DF6F5
4BDA68E8525727B00645478): “Nationally, one in
seven children between the ages of ten and 17 have
been solicited online by a sexual predator”.
Alternatively, the US Department of Justice refers to
the teens who sent unwanted sexual messages as
“predators” and offenders”
(http://ojp.usdoj.gov/ovc/publications/bulletins/internet
_2_2001/internet_2_01_6.html).
Recent research from CACRC, which provides
technical support to the Internet Crimes Against
Children Task Forces, found that in 2006, there were
just over 600 arrests of online sexual predators in cases

J. Social Sci., 6 (4): 542-562, 2010
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involving actual victims (Wolak et al., 2009). This is
just 1% of all arrests for the sexual abuse of minors.
The Texas Attorney General states on his web site:
“The proliferation of child predators using the Internet
to target young victims has become a national crisis. A
study shows one in seven children will be solicited for
sex online in the next year”
(https://www.oag.state.tx.us/criminal/
cybersafety.shtml). On the Pennsylvania Attorney
General web site it states: “The growth of the Internet
has been astronomical and regrettably, predators are
using the Internet as their primary means of contacting
and communicating with their young victims”
(http://www.attorneygeneral.gov/crime.aspx?id=56).
A recent commentary on concerns of the treatment
of juvenile sex offenders written by Chaffin (2008),
published in Child Maltreatment is entitled: Our Minds
Are Made Up-Don’t Confuse Us With the Facts:
Commentary on Policies Concerning Children With
Sexual Behavior Problems and Juvenile Sex Offenders.
For the last decade, law enforcement has frequently
presented information regarding online sexual predators
that was not grounded in fact.
It is imperative that we address the sexting issue
based on an approach that is grounded in “fact”-with an
understanding of normal teen sexual development-not a
techno-panic-driven overreaction grounded in the fact
that teens are now able to engage in sexual-related
behavior using these new technologies.
Criminal legal issues:
Child pornography: Efforts are underway in several
states, including Arizona, Pennsylvania and Indiana, to
criminalize sexting (Rau, 2010; Swift, 2010; Seidel,
2010). Representations have been made that at this time
the only criminal statutes available to address this
concern are those against child pornography or sexual
exploitation of a minor. Amendments to these statutes
are proposed to provide a lesser offense has been
promoted as a protection for minors. These
“protections” would criminalize the creation of these
images, as a lesser charge, but still a crime.
Additionally, in many states, law officers are
regularly telling young people that if they sext they can
be arrested for child pornography. Here is a sample
message (this is taken from an actual brochure
produced by law enforcement. I decided not to identify
the source because I am going to criticize this):
In addition to damaging your reputation, you
could be charged with a crime for making such
a photograph. If you are under 18, any
photograph you take of yourself in a nude or
provocative pose is technically considered
child pornography. And if you send that photo
to someone, you are disseminating child
pornography. Teens in some states have been
charged with felony crimes! If you are found
guilty, a felony record could follow you for
life and you may have to register as a sex
offender. This registration requirement will
follow you to college or university campus and
your future places of employment
Recall the MTV data. Twenty-four percent of 14-
17 year olds reported some involvement in sexting,
either sending or receiving nude images. Is our country
prepared to prosecute one-fourth of the American teen
population for creating, possessing, or distributing nude
images? Laws against the production, dissemination
and possession of sexually explicit images of minors
have been enacted to prevent the abuse of minors-not to
convict minors.
A case involved a “show me yours and I’ll show
you mine” exchange of images resulted in the arrest of
a 12 year old boy and 13 year old girl in Indiana
(McElroy, 2010). The boy “had sent a text and picture
of his exposed genitals . . . and requested that she do the
same”. Police said the girl had responded “via phone
and text a picture of her nude exposed body and
breasts”. Both are now facing felony charges for child
exploitation and child pornography charges.
The purpose for laws against child pornography
was outlined in the US Supreme Court case Ashcroft v.
Free Speech Coalition (535 US 234 (2002)). This case
is instructive because it addressed the question of what
does not constitute child pornography. The Court struck
down two overbroad provisions of Child Pornography
Prevention Act of 1996 which sought to address the
concern of “virtual child pornography” (created with
digital technologies, not a real child). The Court
outlined the concern to be addressed:
The sexual abuse of a child is a most serious
crime and an act repugnant to the moral
instincts of a decent people. In its legislative
findings, Congress recognized that there are
subcultures of persons who harbor illicit
desires for children and commit criminal acts
to gratify the impulses. ... Congress also found
that surrounding the serious offenders are
those who flirt with these impulses and trade
pictures and written accounts of sexual activity
with young children
The Court then set forth the basis upon laws
criminalizing the creation, distribution and possession
of child pornography address this concern:

J. Social Sci., 6 (4): 542-562, 2010
549
Ferber [458 US 747 (1982)] upheld a
prohibition on the distribution and sale of child
pornography, as well as its production,
because these acts were “intrinsically related”
to the sexual abuse of children in two ways.
Id., at 759. First, as a permanent record of a
child’s abuse, the continued circulation itself
would harm the child who had participated.
Like a defamatory statement, each new
publication of the speech would cause new
injury to the child’s reputation and emotional
well-being. See id., at 759 and n. 10. Second,
because the traffic in child pornography was
an economic motive for its production, the
State had an interest in closing the distribution
network. “The most expeditious if not the only
practical method of law enforcement may be
to dry up the market for this material by
imposing severe criminal penalties on persons
selling, advertising, or otherwise promoting
the product”. Id., at 760. Under either
rationale, the speech had what the Court in
effect held was a proximate link to the crime
from which it came
Later, in Osborne v. Ohio, 495 US 103,
(1990), the Court ruled that these same
interests justified a ban on the possession of
pornography produced by using children.
“Given the importance of the State’s interest in
protecting the victims of child pornography”,
the State was justified in “attempting to stamp
out this vice at all levels in the distribution
chain”. Id., at 110. Osborne also noted the
State’s interest in preventing child
pornography from being used as an aid in the
solicitation of minors. Id., at 111. The Court,
however, anchored its holding in the concern
for the participants, those whom it called the
“victims of child pornography”. Id., at 110. It
did not suggest that, absent this concern, other
governmental interests would suffice. See
infra, at 13-15
Clearly, the underlying rationale for laws against
child pornography is to prevent the sexual abuse of a
minor and intended for distribution to those
“subcultures of persons who harbor illicit desires for
children and commit criminal acts to gratify the
impulses”. This is a different situation than what is
involved in the majority of teen sexting situations, such
as the one outlined above. These images were not
created under conditions of abuse and were not
intended for distribution to those who want to sexually
exploit minors. Contrast the above incident with the
following incident:
A 14 year old student was blackmailing high
school students to provide him with nude
images. When arrested, he had hundreds of
images on his IPod and Cell phone. “Our
suspect is just very good at complimenting
these young girls and telling them how pretty
they look. It starts out with him just asking for
clothed pictures and then, ‘Can you send me
one a little more risqué, maybe in your bra and
panties and then from there he tries to get nude
pictures,’” Greenfield police Detective Sgt.
Dave Patrick said
Note the possession of hundreds of images, which
provides indications that the boy was engaged in
collection behavior, as well as the sophisticated
techniques used to groom the girls to provide these
images. Given the size of his collection and the
sophistication of his grooming techniques, there is
reason to suspect that he was engaged with and being
coached by more accomplished pornographers. Further,
in this situation, the boy who obtained the images
through coercion was arrested, not the girls who created
the images. This situation is closer to the intent of laws
against child pornography.
However, as the objective of juvenile jurisdiction is
rehabilitation, charging an offense that would not result
in registration as a sex offender is preferable. As noted
by Chaffin (2008) in his commentary:
Fortunately, the facts as we know them about
children with sexual behavior problems and
teen sex offenders paint a far more optimistic
picture than popular misperceptions would
suggest. Given some sort of credible
intervention, long-term risk is generally low
and not unusually different from that of many
other common and far larger juvenile groups.
Recidivism hazard rates decline quickly,
suggesting that we do not need to take a long-
term risk focus with the vast majority of these
youth
...
Moral panic, righteous indignation and
truthiness have their own allure and
satisfaction. The sound bite that we should put
our kids’ safety before the rights of sexual
offenders, adult or juvenile, sounds so
intuitively correct that it is a guaranteed
political winner, even if the policy it promotes

J. Social Sci., 6 (4): 542-562, 2010
550
is ultimately destructive and fails to deliver the
child protection goods
Under federal law, child pornography is any visual
depiction, where (A) the producing of such visual
depiction involves the use of a minor engaging in
sexually explicit conduct and (B) such visual depiction
is of such conduct (18 USC § 2252). “Sexually explicit
conduct” includes any form of actual sex or the
“lascivious exhibition of the genitals or pubic area” (18
USC § 2256).
Most Courts weigh what are called the Dost factors
to determine whether the images meet this standards
(United States v. Dost, 636 F. Supp. 828 (S.D. Cal.
1986)):
(1) was the focal point of the visual depiction
the child’s genital area; (2) was the setting sexually
suggestive; (3) was the child depicted in an unnatural
pose or inappropriate attire given his age; (4) the degree
of nudity; (5) did the image suggest sexual coyness or a
willingness to engage in sexual activity; (6) was the
image intended to elicit a sexual response from the
viewer.
Clearly under the Dost factors, the focus of the
inquiry is on whether the images are designed to
encourage the sexual abuse of minors (Police: boy
threatened 7 girls into sending nude photos. WISN
http://www.wisn.com/news/21298574/detail.html).
Some sexting images are likely to meet the Dost
standards. Others will not. Even if the images do meet
the Dost standards, if the image has not been produced
under conditions of abuse or coercion of the minor
depicted, it is not child pornography. A teen who has
self-produced and distributed sexually explicit images
could most likely be brought under juvenile jurisdiction
as prostitution, solicitation, or indecent exposure or as a
status offense. However, an adult who engages in
possession or dissemination of an image self-created by
a minor should still be subject to laws against child
pornography.
Harmful unintended consequence: Of even greater
concern are the unintended consequences of telling
teens that if they self-produce child pornography they
could be arrested, even under a misdemeanor charge is
the incredibly harmful impact this will have on the
willingness of young people who really are being
abused to report such abuse.
The Amicus Brief filed in the case of Miller v.
Skumaneck by the Justice Law Center outlines the most
compelling reason for not applying laws against child
pornography against minors-it will increase the harm of
actual sexual abuse
(http://www.aclupa.org/downloads/Amicusmiller.pdf).
The statute seeks to protect minors
manipulated and abused in the creation of
child pornography, supra Part IC1 this purpose
is not served by prosecution of an adolescent’s
consensual act of self expression via sexting.
Rather, the threat of prosecution for appearing
as a subject in alleged child pornography
would serve to deter children who are real
victims of exploitative sexual abuse in the
production of video or photographic child
pornography. ...
Exposing vulnerable, molested children to
prosecution as accomplice to the atrocious
crimes of their abusers serves no positive
purpose and is instead likely to frighten
children away from reporting their abuse for
fear of being criminally charged themselves.
Children who have suffered the terrible ordeal
of sexual abuse in the creation of child
pornography are often silent about the
experience and may blame themselves for the
crimes of their abusers. Goodman-Brown,
Why Children Tell: A Model of Children’s
Disclosure of Sexual Abuse, 27(5) Child
Abuse and Neglect 525, 528 (2003) (finding
“[f]or many reasons, children who have been
sexually abused may come to believe that they
are at least partially responsible for their own
abuse” and delay disclosure). Developmental
factors, including the natural egocentrism of
children, may cause children to assume
responsibility for events in which they are
involved, regardless of their role under the
circumstances. Id
The United States Supreme Court recently
acknowledged that underreporting is already
“a common problem with respect to child
sexual abuse” and cited research reporting that
about 88% of female rape victims under the
age of 18 did not disclose their abuse to
authorities. Kennedy v. Louisiana, 128 S.Ct.
2641, 2663 (2008) ... (citing Hanson, Factors
Related to the Reporting of Childhood Rape,
23(6) Child Abuse and Neglect 559, 564-65
(1999) (finding that 88% of female rape
victims under the age of 18 do not report their
abuse)). Research shows that children often
weigh the consequences of their actions prior
to disclosing abuse and are less likely to
disclose sexual abuse if they blame themselves
for the abuse. Goodman-Brown, supra, at 528,
537-38. A state policy of prosecuting the child

J. Social Sci., 6 (4): 542-562, 2010
551
exploited in the production of child
pornography as an accomplice would further
encourage children to blame themselves and
deter disclosure
Teens make mistakes. They do not always follow
the rules-if they did, there would be no teen drinking,
smoking, or drug use. Worse, sometimes they will be
pressured, abused, or extorted by others to provide
these images based on the misrepresentation that this
abuser loves them and the promise the image will be
kept private. Especially online, predators are known to
use grooming techniques that involve a process of
seeking ever more revealing images-such as the
strategy described earlier used by the 14 year old who
was soliciting images.
The extraordinarily harmful unintended
consequences of these legislative and education efforts
that seek to penalize the teen depicted in the image and
criminalize that teen’s behavior will include:
• Youth who are sexually abused and photographed
will be more afraid to report because they know
they would be charged as accomplices, thus the
abuse will continue
• Youth, who in an impulsive moment provided an
image, can be easily blackmailed by threat of
disclosure. The blackmail could include
performing sex or engaging in prostitution. “If you
don’t have sex with me, or him, I will disseminate
your image and you will be arrested”
• Youth who are faced with the no-win situation of
massive public humiliation, arrest and prosecution
may consider suicide to be a viable option
It is essential that state legislatures and law
enforcement recognize that if they seek to address this
new concern by criminalizing self-creation, they are
placing minors at significantly higher risk of sexual
abuse because it will create situations where teens who
are actually being abused, tricked, or coerced into
providing images will be afraid to report because they
fear arrest.
Consensual sexting behavior that falls within the
range of normative development behavior, where the
participants are within a close age range, thus removing
concerns of lack of actual consent and where no one
shares the images beyond the original participants,
should be addressed educationally and through
counseling, not criminalization.
It is necessary to address the true harm caused by
sexting through the criminalize of the behavior that
actually causes the harm. This includes actions that
violate the trust of the teen depicted by distributing the
images further than the extent to which the teen
depicted envisioned and, most especially, to criminalize
malicious or egregiously harmful actions that have
either pressured or coerced the teen into create the
image or which have led to the wide distribution of the
image, as well as those incidents where sexting is
occurring in the context of other forms of sexual abuse.
For the teen whose self-creation has crossed the
line from normative developmental behavior to self-
exploitation, it there are already criminal statutory
provisions, such as teen prostitution, solicitation, or
indecent exposure, that should allow juvenile
jurisdiction to ensure that the teen is placed in a
remediation treatment program that will address this
self-injurious and dangerous behavior.
Young adults: An additional challenging situation is
that during their senior year of high school, most
students turn 18 and are supposedly now able to think
like adults. If an 18 year old sends a nude image to a
minor, asks for or simply receives a nude image of a
minor, or distributes a nude image of a minor, that
student could more easily face felony arrest and
registration as a sex offender.
Based on the findings of the Pew Internet study,
8% of 17 year olds had sent a nude image and 30% had
received one. We can assume the percentage of 18 year
olds who are engaged in this activity is relatively
equivalent. Especially because these 18 year olds are
immersed in a social environment with peers who are
minors, we must expect that image sharing and requests
will cross this legally-constructed line.
In a privately reported incident, a group of high
school boys jointly created a “rowdy” video that
included nudity. All but one of the students were 17.
The unfortunate one had turned 18 several weeks
before. The 17 year old students faced no legal
consequences. The 18 year old student was arrested and
is now a registered sex offender.
An effective legislative solution would create a
safe-harbor exception for all sex crime laws that relate
to sexting behavior, similar to that provided in statutory
rape laws (Davis and Twombly, 2000). This would
include laws related to provision of indecent materials
to minors and the sexual exploitation of minors. This
would allow teens and young adults who are roughly
the same age to legally sext, but provide the ability to
charge individuals in situations where a significant age
gap between the participants calls raises questions
about consent. The most common safe harbor age
differential in various states appears to be 3-4 years
difference in age. So as not to confuse youth, the age

J. Social Sci., 6 (4): 542-562, 2010
552
difference in these statutes should be similar to the age
difference related to statutory rape. It will also be
necessary to take into account situations where
cognitive disabilities may also interfere with the ability
to consent.
Distribution of images: The greatest harm to young
people engaged in sexting is when the image is
disseminated. There may be no criminal statutes that
specifically address this situation. There is a civil law
remedy (Restatement of the Law, Second, Torts, §
652D):
652D Publicity Given to Private Life. One
who gives publicity to a matter concerning the
private life of another is subject to liability to
the other for invasion of his privacy, if the
matter publicized is of a kind that (a) would be
highly offensive to a reasonable person and
(b) is not of legitimate concern to the public
Most, if not all, states have some form of an
Invasion of Privacy statute. This statue generally
applies in cases where someone creates a reproducible
image of person who is fully or partially nude by
obtaining such image in a place where privacy is
expected. The statutes also generally prohibit the
distribution of images obtained in such a manner to a
third party.
This statute could be amended, if necessary, to
include several different provisions related to nude or
partially nude images that have been provided by the
person depicted or from a third party. These provisions
could:
• Prohibit the distribution of a nude or semi-nude
image of a minor. (this would include images that
would not meet the child pornography requirement
of “sexually explicit”. It is presumed that minors
cannot legally consent to such distribution, even in
circumstances where the minor has more widely
distributed the image)
• Prohibit the distribution of a nude or semi-nude
image of an adult without permission of the person
depicted. (this will address the revenge porn
problem)
• Coerce a person a person into providing a nude or
semi-nude image. (Coercion is the act of forcing
another party to provide such image by use of
threats, intimidation, trickery, or some other form
of pressure or force)
False light image: The PROTECT Act of 2003 was
enacted subsequent to the decision in Ashcroft v. Free
Speech Coalition (Pub. L. 108-21, 117 Stat. 650, S.
151, enacted April 30, 2003). This Act used language
that was carefully drafted to meet the standard
enunciated in that decision, including the dissenting and
concurring in part opinions.
This Act prohibits making “virtual child
pornography”-a visual depiction that is a digital image,
computer image, or computer-generated image of, or
that is indistinguishable from an image of, a minor
engaging in specified sexually explicit conduct.
The rationale of the prohibition on virtual child
pornography remains the same as argued in Ashcroft,
that virtual child pornography whets the appetites of
pedophiles and encourages them to engage in illegal
conduct, pedophiles may use virtual child pornography
to seduce children and the possibility of producing
images by using computer imaging makes it difficult to
prosecute those who produce pornography by using real
children.
The laws against virtual pornography do not
address a concern that sometimes emerges in the
context of sexting, which is when someone creates a
virtual image that merges an image of a known minor
onto a semi-nude, nude, or sexually explicit image, thus
creating an image that places the known minor in a
position of false light-appearing to be posing in this
manner. Presumably, a sexually explicit image would
meet the standards of virtual child pornography, but
images that are nude or semi-nude might not.
Further, the rationale for the production of this
false light image is different from the rationale for child
pornography. The harm is grounded in the
misrepresentation of the person depicted as engaging in
behavior that is not what he or she has or would do that
damages that person’s reputation. This is the same harm
that is addressed in the civil law tort of false light
(Restatement of the Law, Second, Torts, § 652E).
652E. Publicity Placing Person in False Light.
One who gives publicity to a matter
concerning another that places the other before
the public in a false light is subject to liability
to the other for invasion of his privacy, if (a)
the false light in which the other was placed
would be highly offensive to a reasonable
person and (b) the actor had knowledge of or
acted in reckless disregard as to the falsity of
the publicized matter and the false light in
which the other would be placed
An additional provision could be added to the
Invasion of Privacy statute that would prohibit
producing, distributing, receiving, or possessing with

J. Social Sci., 6 (4): 542-562, 2010
553
intent to distribute a nude or semi-nude image that
places a person in false light.
Registration as sex offender: Concerns about the
effectiveness of sex offender lists are rising (Knutson
and Scheck, 2009; Pfeifer, 2009). Contrary to stranger
danger warnings, the vast majority of offenders who
abuse children and teens are known by or related to the
victim. There is no evidence to demonstrate that sex
registrations have made society safer. The registry lists
are growing exponentially, resulting in a caseload that
is impossible to manage. When there is no assessment
of actual risk, the registry can act to dilute the amount
of attention that is paid to the truly dangerous
individuals.
Reflect back to the story of Philip Alpert. Yes, he
should not have sent nude images of his girlfriend to
many people. Yes, this was an act that required a legal
consequence. But Philip sent those imaged during a
brief period of intense anger. There are no indications
whatsoever that Philip presents any risk of harm to
anyone. Yet he is on a list with rapists and pedophiles.
As reported (Feyerick and Steffen, 2009): “He’s been
kicked out of college, he cannot travel out of the county
without making prior arrangements with his probation
officer, he has lost many friends and is having trouble
finding a job because of his status as a convicted felon”.
Of what possible value to society is it to destroy this
young man’s life and fill up the sex offender registry
with someone who presents no risk of harm to other
youth?
Given the degree to which sexting behavior has
penetrated teen and young adult environment, the likely
inability of teens to distinguish when actions that are
common among their peers have crossed the line of
acceptability and the ease with which actions with
digital media can be taken impulsively, no teen or
young adult should be required to register as a sex
offender unless the actions of that teen or young adult
are truly egregious and clearly demonstrate risk of that
they may engage in sexual abuse in the future.
School legal issues:
On-campus actions: School officials have the
authority and responsibility to respond to any harmful
or inappropriate speech through the District Internet
system and by students using digital devices at school
to either take pictures or send them if those actions are
inconsistent with the school’s educational mission,
Bethel v. Fraser (478 US 675 (1986)), or if the actions
have created, or a reasonable person would perceive
could create, a substantial disruption at school or
interference with the rights of students to be secure,
Tinker v. Des Moines (393 US 503, 507 (1969)).
This legal standard clearly gives school officials
the authority to respond to on-campus acts of students
related to sexting.
Off-campus actions: The majority of these pictures,
are not, for obvious reasons, produced on campus.
Many times they are also not being distributed on
campus. Thus it is important for school officials to
understand when and against whom, they can impose
formal discipline. Some districts have implemented
policies allowing for student discipline for sexting or
have suspended students for such activities.
School officials have the authority to formally
respond to off-campus speech if that speech has
created, or a reasonable person would perceive it could
create, a substantial disruption at school or interference
with the rights of students to be secure (Layshock v.
Hermitage Sch. Dist., No. 06-116 (July 10, 2007)). But
school officials may not respond based on disapproval
of the content or manner of the speech, however
offensive, or the perspective that the student’s speech is
inconsistent with educational standards. When students
are off-campus, parents are responsible for imparting
values.
Unfortunately, the case law in this area is still
developing, but most of the parameters are clear (Id).
There must be a nexus between the off-campus online
speech and the school community and the impact must
be at school. The impact must also be material and
substantial-not merely disapproval of the expression of
the actions of a student. Further, the disruption must be
of the school or interference with rights of students.
Cases interpreting Tinker have found a number of
typical situations may meet this challenge may include
a significant interference with instructional activities,
school activities, or school operations (Boucher v.
School Board of the School District of Greenfield, 134
F.3d 821 (7th Cir. 1998)), physical or verbal violent
altercations (Mahling, 1996), or the creation of a hostile
environment or substantial interference with a student’s
ability to participate in educational programs or school
activities (Saxe v. State College Area School District,
240 F.3d 200 (3rd Cir. 2001)). Further, the speech must
be the actual cause of the disruption or anticipated
disruption (Layshock, supra.).
In some situations, generally where the
dissemination of images could be considered bullying
or harassment, school officials likely do have the
authority to impose discipline for off-campus sexting
acts that are directed at harming a student’s reputation
or causing a hostile environment at school for that
student. This could include situations where the act of
sending the image to a recipient who does not want to

J. Social Sci., 6 (4): 542-562, 2010
554
receive it constitutes harassment, distributing an image
to others, or maliciously soliciting the image.
In a situation where a student created an image and
sent it privately to someone and that person has
disseminated the image is highly likely not to meet
these standards with respect to the student depicted.
The fact that a student may have engaged in an action
that is now causing him or her to be ridiculed does not
mean that this student has caused the substantial
disruption. It is the students who are distributing the
image who are causing the disruption.
Liability for hostile environment: School officials
have the responsibility to respond if a hostile
environment has been created for a student on-campus
if they know of the concern and have the ability to
respond (Davis v. Monroe Bd. of Educ., 526 US 629
(1999)). This includes hostile environments grounded
in sexual harassment. School officials may have the
responsibility to respond to off-campus online speech
that has created a hostile environment at school, if they
know of the concern. The standards in this area are
unclear.
The fact that a student has done something
“stupid”-like provide a nude or semi-nude image that
has now “gone viral” and has led to sexual harassment-
does not absolve school officials of their responsibility
to prevent a hostile environment and stop the sexual
harassment.
Search and seizure: In 1985, the US Supreme Court,
in New Jersey v. T.L.O., held that the Fourth
Amendment prohibition on unreasonable search and
seizures applies to searches by public school officials of
students and their possessions (469 US 325
(1985)). The Court held that student searches must be
reasonable-a balance between students privacy rights
and the school’s need to maintain order. To determine
the reasonableness, two questions must be asked: (1)
whether the action was justified at its beginning and (2)
whether the extent of the search as conducted was
reasonably related to the circumstances which justified
the search in the first place. To justify a student search,
reasonable grounds must exist for suspecting that the
search will turn up evidence that the student has
violated or is violating either the law or school policy.
The TLO standard will apply to school official searches
of a student’s electronic device.
In 2006, a federal court in Pennsylvania applied the
T.L.O. reasonableness standard in the case of Klump v.
Nazareth Area School District (425 F. Supp. 2d. 622
(E.D. Pa. 2006)). In Klump, a teacher had confiscated a
student’s cell phone because it was visible in class,
violation of a school policy that prohibited the display
or use of cell phones during instructional time. An
administrator then searched through the student’s stored
text messages, voicemail and phone number directory
to determine if other students were also violating the
school’s cell phone policy. The student filed suit,
asserting that these actions constituted an unreasonable
search.
The Court determined that the district had
reasonable suspicion that the display/use policy was
violated, but did not have reasonable suspicion that any
other law or policy had been violated. Thus, the
confiscation of the cell phone was justified, but the
search of the phone records violated the student’s
Fourth Amendment rights. In addition the Court found
that the district violated the Pennsylvania Wiretap Act
by accessing stored voicemail and text messages.
The issue of school official review of cell phone
records when the cell phone was merely visible or used
at school is also under litigation in Mississippi in the
case of J.W. v. Desoto County School District
(http://www.aclu.org/racial-justice/jw-v-desoto-county-
school-district).
It is also necessary to consider the implications of
the recent US Supreme Court decision in Safford
Unified School District v. Redding (557 US-(2009)).
The Supreme Court referred to a strip search of a
student as “categorically extreme intrusiveness” and
indicated that the barrier for justification for such a
search was extremely high. See also Beard v. Whitmore
Lake School District: “Students have a significant
privacy interest in their unclothed bodies” (402 F.3d
598, 604 (6th Cir. 2005)).
School officials in the Tunkhannock Area School
District in Pennsylvania are currently facing litigation
for violating a student’s privacy by viewing nude
images (School turned over girl’s private nude photos
to law enforcement.
http://www.aclupa.org/pressroom/acluofpasuesschooldi
strict.htm). A commentary that appeared in the Times
Tribune entitled Electronic Peeping Toms, stated
(http://thetimes-tribune.com/opinion/electronic-
peeping-toms-1.807464):
It’s one thing for school officials to confiscate
a phone in order to enforce policy. It’s quite
another to search its memory as part of a
fishing expedition. ... As lawmakers, the courts
and schools figure out how to deal with
sexting, they should pay equal attention to
protecting the privacy rights of students
To search the records held on a student’s digital
device, a school official must have a reasonable

J. Social Sci., 6 (4): 542-562, 2010
555
suspicion that the records would reveal that a law or
school policy has been violated and that search is likely
to turn up evidence of that violation. The simple fact
that a device is visible in school when it is not supposed
to be does not justify searching the records on that
device. School districts should consult with their legal
counsel for guidance on the application of their state’s
wiretap law.
Criminal risks faced by school officials: The other
issue that school officials must pay scrupulous attention
to is that these are nude images of minors. Possession
or distribution by an adult constitutes a federal and state
felony. There are currently no statutory “exceptions”
for school officials to possess or distribute these
images.
Both through news reports and privately reported
situations, it is clear that some administrators are not
handling these images properly. The author heard of
one incident where an overreacting principal sent the
nude image to a dozen others asking for guidance on
what to do. School administrators in Pennsylvania are
currently under criminal investigation for how they
handled student images (Elias and Victor, 2010):
The youths involved in s sexting case at
Susquentia HIgh School last year are facing
felony charges
Now, based on parents’ complaints, the
administrators who caught them might face
their own consequences, creating another
murky legal issue in the largely untested
intersection of children, technology and
pornography
Susquenita High School officials are being
investigated after parents claimed
pornographic images and videos from cell
phones confiscated from students were
“passed around” and viewed by more than just
those administrators who investigated the
incident
“Of course, one or two people had to see the
images to determine what they were”, Perry
County District Attorney Charles Chenot said.
“But if more than one or two top
administrators saw them, there better be a
good reason why”
School employees could be charged with
displaying child pornography-the same
charges the students involved face-if they
showed the images to people not involved in
the investigation, Chenot said
One assistant principal was prosecuted, although
ultimately the charges were dismissed because the
image itself was not deemed to be pornographic (Zetter,
2009).
Reporting and investigation protocol essential: It is
imperative that school districts have a clear protocol for
reporting and investigating these incidents that has been
approved by their local district attorney and school
district counsel. This protocol must address the
standards for search and seizure, actions are necessary
if students are suspected of a criminal offense including
the need to contact parents before allowing a police
officer to conduct an investigation unless there are
indications of family-based sexual abuse and how
school officials should handle nude images. It may be
safest for school officials if the only actions they take
with respect to the cell phones that might contain such
images are to confiscate the cell phones and provide
them to the police.
Multidisciplinary teams: Multidisciplinary Teams
(MDTs) were described in a document from the US
Department of Justice Office of Juvenile Justice and
Delinquency Prevention (OJJDPP, 1998):
An MDT is a group of professionals who work
together in a coordinated and collaborative
manner to ensure an effective response to
reports of child abuse and neglect. Members of
the team represent the government agencies
and private practitioners responsible for
investigating crimes against children and
protecting and treating children in a particular
community. An MDT may focus on
investigations; policy issues; treatment of
victims, their families and perpetrators; o ra
combination of these functions. ...
The MDT approach promotes well-
coordinated child abuse investigations that
benefit from the input and attention of many
different parties-especially law enforcement,
prosecution and child protective services-to
ensure a successful conclusion to the
investigation and to minimize additional
trauma to the child victim
A recent study MDTs noted that a growing body of
literature has determined MDTs are an effective way to

J. Social Sci., 6 (4): 542-562, 2010
556
deliver services. Among the advantages: More accurate
assessment and prediction of risk. Improved
intervention. Decreased fragmentation in delivery of
services. Enhanced quality of evidence. Improved
quality of services. Reduction in the trauma of children.
Positive influence the development and use of
additional services and resources.
Given that MDTs are already present in many
communities and that their membership includes the
same kinds of professionals whose involvement is
necessary to investigate the determine an appropriate
response to sexting incidents, it makes logical sense to
place the authority for oversight of sexting incidents
within the MDTs. Unfortunately, not all MDTs
specifically include the involvement of schools
districts-an inclusion that will be necessary.
Recommended legislation (Geyer, 2009):
• Amend the laws against child pornography to allow
for lesser included offenses that will ensure that if
teens are involved in activity that actually meets
the standards of child pornography they can be
rehabilitated as juveniles
• Child pornography laws should only apply to
situations involving sexually explicit images
taken or provided under situations of sexual
abuse or coercion that are distributed or
possessed with intent to distribute. The person
who commits the crime is the person who has
engaged in abuse, coercion, or distribution of
images obtained through abuse or coercion
• Amend the laws against sending inappropriate
material to a minor, endangering the welfare of a
minor and other relevant sex crimes laws to create
a safe-harbor exception, allowing minors and
young adults who are roughly the same age to
legally sext, as long as the images are retained
privately and to include lesser included offenses
• This would give prosecutors the ability to
charge individuals in situations where a large
age gap between the participants raises
concerns about consent, but recognize sexting
may be performed without concerns of
coercion and undue pressure between teens
and young adults. The lesser included offenses
would allowed a tiered approach
• Amend the state law that addresses invasions of
personal privacy or create a new statute that
addresses three provisions that make it illegal to:
• Distribute a nude or semi-nude image of a
minor
• Distribute a nude or semi-nude image without
the permission of the person depicted (this will
address distribution of adult images)
• Engage in malicious actions to procure or
disseminate a nude or semi-nude image (a
more significant criminal offense than simple
distribution)
• Create and distribute an image that shows
person depicted in false light as appearing
nude or semi-nude (for example, merging the
face shot of one person onto a nude image of
another)
• Designate the Multidisciplinary Teams as being
responsible for overseeing local responses to
sexting situations
• Given that the MDTs already include the
appropriate professionals, it makes logical
sense that the MDTs should be responsible for
developing/approving an investigation
“protocol” for their respective regions and
providing oversight for the investigation and
intervention of all reports
• Consider whether or when to make this
mandatory reporting. For example, situations
involving more normative behavior, between
like age peers, where the images have not
spread may not need to be reported. Perhaps
also not everyone should be a mandatory
reporter. Given the incident rates, this could
overwhelm the reporting system
Recommended district policies: Sexting incidents are
impacting schools. It is important for districts to
determine how existing policies can be applied to these
situations or whether new policies are necessary. The
underlying question that must be asked is when these
situations meet the standards necessary to support a
school disciplinary response.
Anti-bullying and harassment policies are generally
grounded in the standards enunciated in the case of
Tinker v. Des Moines (393 US 503 (1969)). School
officials have the authority to respond to student speech
if that speech has, or there are particularized reasons to
believe it could cause a substantial disruption at school
or interference with the rights of students to be secure.
Numerous courts have applied this same standard to
off-campus speech that impacts school (478 US 675
(1986)).
Districts might argue that the controlling case is
Bethel School District v. Fraser, where the Court
upheld the school’s suspension of a high school student
who, at a school assembly, nominated a peer for class

J. Social Sci., 6 (4): 542-562, 2010
557
office an explicit sexual metaphor. The Court reasoned
that:
[T]he schools, as instruments of the state, may
determine that the essential lessons of civil,
mature conduct cannot be conveyed in a
school that tolerate lewd, indecent, or
offensive speech and conduct such as that
indulged in by this confused boy
Fraser may provide guidance in those situations
where images are being “conveyed in a school”. But
Fraser likely does not provide justification for school
authority to impose discipline in cases where images
are merely possessed or conveyed in a mutually
consenting exchange.
In a leading case evaluating the constitutionality of
a district bullying prevention policy, axe v. State
College Area Sch. Dist then Judge Samuel Alito
outlined the constitutional issues involved (240 F.3d
200, 213 (3d. Cir. 2001)). In part, Aliito indicated
approval for policy language that prohibited “speech
that substantially interferes with a student’s educational
performance”:
The primary function of a public school is to
educate its students; conduct that substantially
interferes with the mission is, almost by
definition, disruptive to the school
environment
The Court, however, found there were significant
concerns about a provision of the policy that allows
school officials to respond to student speech that
another student might find “offensive” as being
overbroad and encompassing constitutionally protected
expression.
Based on this background, the key question for
school officials is at what point incidents involving
“sexting” meet the legal standards that justify a school
disciplinary response. There are situations that appear
to meet constitutional standards. These would include
when images are sent in a harassing manner, that is the
recipient of the image did not consent to receive or
welcome the image. Situations that would also
presumably meet constitutional standards are where the
image is being forwarded to others without the
permission of the student depicted and when a student
has either maliciously obtained or is maliciously using
an image, such as using the possession of an image as
blackmail.
Situations where discipline are likely not justified
are where a student is privately possessing an image
and where images have been shared consensually with
no further sharing beyond the consensual parties.
School officials may argue that they have a
responsibility to inculcate values or the possession of
these images are a violation of the law. But if the
images are not significantly impacting the school or
other students, school officials have no responsibility to
seek to usurp the role of parents in inculcating values.
The fact that a student might have committed a criminal
offense, if not committed at school, does not provide
the justification for a school disciplinary response.
It is also exceptionally important that the responses
to these situations be based on who actually has caused
the harm and that the disciplinary responses are applied
in a manner that is gender neutral. A district in
Washington is being sued because it allegedly banned a
cheerleader from the squad for sending an image, but
did not ban the football players who were distributing
her image without her consent (Soronen, 2010).
A situation that must be handled very delicately is
when a student has been pressured to provide an image
or has sent an image with the expectation that it would
remain private and that image has been disseminated.
The student or students who are at fault in this situation
and should receive discipline are the one(s) who
provided the coercion to produce the image or are
distributing the image. Imposing a disciplinary
consequence on the student who is depicted can
contribute to profound harm.
The situation of Hope Witsell provides vitally
important guidance in this matter (Inbar, 2009). On one
occasion she sent a nude image to a boy she liked.
Another girl found the image on the boy’s phone and
sent it throughout the school. Later, on a school field
trip, she was coerced by a group of boys to provide an
image. The result of these actions was intense bullying
at school. When the school officials found out they
suspended Hope for a week and refused to allow her to
be a leader in the extracurricular organization that she
was very active in. Shortly after the school-imposed
discipline, Hope committed suicide.
School officials MUST understand the significant
damaging effect of imposing discipline on a student in
this kind of a situation. This student is likely already
facing excessive peer harassment. The expression of
adult disapproval through the imposition of discipline
can act to justify the peer harassment in the minds of
the other students. This can result in placing this student
in a position of extreme emotional distress, with the
significant likelihood of leading to school avoidance
and failure and, in some cases, of self-injury.
The other key issue from a policy perspective is the
need to encourage students to report when an image

J. Social Sci., 6 (4): 542-562, 2010
558
starts to be distributed, so that the distribution can be
more limited. There are several issues that can act as a
disincentive to such reporting: (1) The prospect that the
student who reports will be hauled out of school in
handcuffs under arrest for possession of a nude image.
This would be a fear based on some of the current
messaging law enforcement has been providing. (2) The
student will be disciplined for violating a rule against
using a cell phone during school hours. (3) The cell
phone will be confiscated for evidence, thus making it
impossible for the student to remain in contact with
peers. It is necessary to find a way to ensure reporting,
but also not allow reporting to be used in a malicious
manner, that is, pressuring a student to provide an
image and then reporting that student.
Addressing the first concern will require
discussions with law enforcement about their
messaging and what assurances they can provide
related to the potential of prosecution of a student who
reports who is otherwise not blameless. The second
issue may be addressed with a policy provision that
provides immunity from discipline for inappropriate use
of the cell phone during the school day or possession of
an image if a student makes a report and is also found
not to have engaged in any contributing harmful acts.
Addressing the last concern will also require
discussions with law enforcement. Possibly an
arrangement could be made that pictures are taken of
the evidence on the phone, which is then inappropriate
images are then deleted and the cell phone returned.
Possibly each school could maintain a collection of
used cell phones that could be provided as loaners if it
is necessary to retain a student’s personal phone.
Possibly some form of financial reward for students
who report may provide encouragement, especially if
that student will be inconvenienced by the loss of a cell
phone. All of these issues should be discussed with
local law enforcement.
Multidisciplinary investigation and intervention
protocol: Given the potential criminal issues involved,
it is imperative that a protocol be developed that will
provide guidance to school officials in responding to
sexting incidents that they become aware of or are
impacting schools. This protocol must be developed in
cooperation with and the approval of the local district
attorney. The protocol also should be approved by the
district’s legal counsel. In the context of the
development of this protocol, school officials should
encourage a tiered approach to responding to these
situations that focuses on education and rehabilitation.
In some reported incidents, students have been
hauled away from school in handcuffs, sometimes
without parents being notified (WDBJ7, 2010). This
approach can have a profoundly disturbing impact on
the entire school community and can cause significant
emotional harm to the students who are arrested. School
officials must seek to avoid having this kind of an
incident occur.
Even absent a specific state law specifically
directing that MDTs take responsibility for oversight of
the sexting concern, it makes logical sense for the
MDTs to develop a local protocol for how to
investigate and respond to these cases. Further, these
situations may well fall under a reading of the existing
language.
Special consideration will need to made about who
should interview the students, especially the student
who is depicted. This student can be anticipated to be in
a situation of extreme emotional distress due to the fact
that the image they created, likely believing it would
remain public, has now been discovered. The
investigation of this student should likely be
accomplished a school professional who has an
excellent rapport with the student, such as a counselor,
by a law enforcement official with specific training in
working with sexual abuse victims, or a child protection
worker. Every effort must be made to ensure that news
of the incident is not spread.
CONCLUSION
Recommendations for a reporting, investigation
and intervention protocol:
• It is imperative that schools districts have a
protocol to guide reporting and investigation that
has been developed in collaboration with and
approved by the local district attorney and has been
approved by district counsel
• An important role of school officials in developing
such a protocol is to address the concerns of law
enforcement that wants to take a “tough on crime”
approach to trying to prevent sexting:
• Ensure the involvement of mental health
professionals ~ hopefully through the MDT
• Encourage prevention and a balanced, tiered
approach to intervention
• Reduce the emotional trauma to the involved
students. There is NO need to haul students
out of school in hand-cuffs
• The following protocol can serve as a model, but
obviously must be approved locally
• Establish a multidisciplinary investigation team
within the school includes the principal,

J. Social Sci., 6 (4): 542-562, 2010
559
counselor/psychologist and school resource officer-
with back-up from district legal and risk prevention
services:
• Make sure all district personnel know who
they should report situations to and how
images and cell phones should be handled
• Make sure all principals have a clear
understanding of the search and seizure
standards that have been approved by the local
district attorney and school district legal
counsel
• My personal recommendation is that principals
should avoid ever looking for or at any nude
image of a minor unless under specific
direction from a law officer
• Once reported, strive to stop further dissemination
of the images:
• Make sure students know that cell phone
distribution paths can be traced and if they are
found to have distributed an image, this will
result in suspension
• Promise confidentiality for student reports
about such distribution
• Confiscate the cell phones of the students who
are suspected to be involved. But do not search
without first contacting law enforcement
• Make sure parents are contacted as early as
possible
• Strive to keep these incidents out of the news, if
possible. If news coverage does occur, ensure
statements made will minimize the emotional harm
to the teens depicted. Talk with media about
concerns related to such harm:
• News of these situations will expand news of
the incident and could lead to further
dissemination of the images. This will likely
increase the emotional harm to the students
depicted and the sexual harassment they will
receive on campus ~ making it impossible to
safely come to school. School officials must
seek to prevent a hostile environment
• Establish parameters for how and when incidents
should be reported to the MDT and investigated.
Recommendations are as follows:
• Immediately report situation to MDT and
based on what is known at the time, make a
decision about who will take the initial lead in
conducting an investigation
• Recognize that the student (s) depicted could
potentially be in a situation of severe
emotional distress. Insist that whoever
interviews a depicted student has professional
training in working with sex abuse victims
• In consultation with the MDT, determine how
and when to contact parents. Most district
policies require contacting a parent prior to
any investigation, unless there are family-
related sexual abuse concerns
• As names of participants are identified,
immediately transmit these to the MDT to
determine whether there are any prior records.
• Discuss findings and propose plan for further
investigation or intervention
• Routinely evaluate the report, investigate and
intervene protocol as applied to situations to
determine effectiveness of the protocol and
develop better prevention
Investigation questions:
Initial questions: Who are participants? What is the
difference in ages? Who is depicted? Who created or
facilitated the creation of the image and how? Did person
depicted know the image was created and approve? Who
sent image? Where and how was it sent, to whom, to
how many people? How did it spread after initial
distribution? Was the image distributed at school? Is
there evidence of a faked image or of abuse of teen?
Self-initiation or pressure: Creation Initiated by
Person Depicted. (May have been facilitated by
someone else):
• Was the image also disseminated by the person
depicted? If so, who was the image initially sent to
and for what apparent purpose?
• Romantic partner? Desired romantic partner?
What are the actual circumstances?
• For attention-getting? Peer group “game”?
• As a form of harassment? The equivalent of
“up yours” or “mooning/” To shock or “gross
people out”?
• Solicitation? Sexual hook-up interest?
Equivalent age peers? Solicitation of younger
teens? Prostitution? Was recipient known in
person or only online?
Creation initiated in response to “pressure”:
• What kind and degree of “pressure?” Was this a
request, sweet-talking, manipulation, false promise,
coercion, threat, invasion of privacy? By someone
known or known only online?
• Non-malicious pressure from a romantic
partner, with no intent to share? Non-
malicious pressure in a group “game” that got
out of control?

J. Social Sci., 6 (4): 542-562, 2010
560
• Malicious pressure in a group with a malicious
leader, “in-crowd” students seeking images of
“wannabes”, or an individual bully ~ all with
plans to disseminate?
• Person used coercion, threats, false promises
to trick or convince person into creating or
allowing creation of image? Was this an
abusive partner?
• Invasion of privacy (locker room) to create
image?
Dissemination:
• If image has been disseminated, how widely has it
been distributed, who was most actively
distributing and what was the apparent intent of all
participants in the dissemination?
• Self-sharing or non-malicious sharing with
small number of friends, not thinking that
anyone would further disseminate?
• Maliciously shared after a break-up of a
relationship?
• Image was not disseminated by person
depicted or his/her friend who possessed the
image, but was found by someone who gained
access to the digital device and disseminated
maliciously. Find out who had access to
device?
• Intentional and malicious wide distribution by
someone who obtained either from person
depicted or from someone else who had
obtained it?
• Disseminated by person depicted for attention-
getting or sexual solicitation purposes?
• If image has not been widely disseminated, is
image being used for blackmail?
Incident intervention:
Developmentally normative:
• Impose mild level restorative justice school
discipline for any students who violated trust-if
there has been a substantial disruption at school or
creation of a hostile environment for any student
(s) depicted
• Consider juvenile court review in some situations
leading to informal disposition, deferred
prosecution, or diversion for anyone violated trust
and distributed image outside of relationship or
group
Harassment:
• Impose more significant restorative justice school
discipline for any students who engaged in
harassment activities
• Implement juvenile court review of circumstances-
which could lead to informal disposition, deferred
prosecution, diversion, or detention-depending on
egregiousness of situation:
• Possible charges include: Harassment.
Invasion of privacy. Disorderly conduct.
Malicious acquisition or distribution. False
light
• The reason for juvenile jurisdiction is to
ensure a disciplinary consequence, as well as
supervision and rehabilitation
At-risk:
• Impose school discipline only appropriate if at-risk
behavior constituted sexual harassment of other
students
• Implement juvenile court review of circumstances-
which could lead to informal disposition, diversion,
status offense, or detention-depending on
degree/manner of risky behavior
• Possible charges include: Harassment.
Indecent exposure. Solicitation. Prostitution
• The reason for juvenile jurisdiction is to
ensure counseling, supervision and
rehabilitation
Exploitive:
• Impose significant restorative justice school
discipline for any students who engaged in
harassment activities
• Implement juvenile court review of circumstances-
which could lead to informal disposition, diversion,
status offense, or detention, depending on
degree/manner of harmful behavior:
• Possible charges include: Harassment.
Malicious acquisition or distribution. Stalking.
Blackmail. Solicitation or exploitation. Child
pornography
• The reason for juvenile jurisdiction is to
ensure a disciplinary consequence, as well as
counseling, supervision and rehabilitation
Young adult students:
• How law enforcement will handle situations of
over-18 students engaged in unlawful behavior is
out of the hands of the MDT or school officials:
• The MDT should advise against an
overreaction. Most often, these are teens in a
peer environment who simply do not
understand the implications

J. Social Sci., 6 (4): 542-562, 2010
561
• Encourage use of lowest level of criminal
charges and avoidance of any charges that
could result in required registration as a sex
offender. Given the degree of normality of
these incidents, registration as a sex offender
will rarely be justified, would destroy the
future of this student and provide no
community protection against future sexual
abuse whatsoever
Prevent sexual harassment:
• Articulate a plan to stop anticipated sexual
harassment of the student (s) depicted:
• Schools have a legal obligation to prevent
sexual harassment of students-regardless of
whether the student has engaged in behavior
that contributed to this
• Implement a plan to provide emotional support:
• The student depicted is likely at risk for severe
emotional distress and may need to be on
“suicide watch”
AKNOWLEDGEMENT
Author notes the incredibly helpful insight that has
been provided in the creation of this report by Anne
Collier, of Connect Safely and NetFamilyNews,
Elizabeth Englander of the Massachusetts Aggression
Reduction Ceneter, Patti Agatston, Prevention
Specialist with Cobb County Schools, Georgia, Mike
Donlin, Program Manager Prevention/Intervention for
Seattle Public Schools, Sameer Hinduja, Associate
Professor in the Department of Criminology and
Criminal Justice at Florida Atlantic University, Justin
Patchin, Associate Professor of Criminal Justice in the
Department of Political Science at the University of
Wisconsin-Eau Claire.and Jim Hargreaves, Retired
Lane county Circuit Judge. However, the author bears
responsibility for the opinions expressed in this report.
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