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‘Sexting’ and its legal ramifications

April 13, 2009

LISBON - A detective from the Columbiana County sheriff's office has begun speaking to local high school students about the legal perils of "sexting," and the county prosecutor's office is offering to do the same with school administrators.

Detective Steve Walker, who investigates sex crimes for the sheriff's office, has spoken to assemblies at the county vocational school and Columbiana High School about sexting, the practice of young people taking nude or sexually suggestive photographs of themselves with a cell phone and then "sexting' -sending the images to others by way of texting.

"What they don't realize is if they are under the age of 18 it is considered child pornography, and it can be prosecuted as such," Walker said.

Sexting has gained more attention of late because of a 16-year-old girl in the Cincinnati area who committed suicide after her former boyfriend distributed to classmates a nude photograph she had taken of herself and sent to him when they were dating. Her parents believe their daughter was driven to take her life because of the ridicule and taunting she endured from the photograph being shared with countless other students at her school.

Assistant County Prosecutor Denise Weingart, who is assigned to county juvenile court, said that is the danger of sexting.

"A picture never goes away. Once you send it, it's out there forever. That picture can end up way beyond its intended audience," she said. "Obviously, it's a problem. Most of these kids who do this don't know how damaging this can be."

The biggest problem is how to deal with the legal issues created by this latest technological phenomenon. Detective Walker said a young person who takes a photograph of himself or another minor in the nude, or in a sexually suggestive position or engaging in sexual activity, is guilty of illegal use of a minor in a nudity- oriented material or performance. Sexting the photograph to someone under the age of 18 is another crime - disseminating material harmful to a juvenile.

Walker said his talks are to "just get the information out there for the students to realize how serious a crime this is, and once they send that photo they have no control over how far this can go."

Weingart said there have been two sexting cases recently in juvenile court. One cases involves a boy who sexted nude photographs of his former girlfriend. The boy was the only one charged in this case because he took the photographs, and there is evidence he coerced the girl into letting him take the photographs.

The other case involves a camera-phone video of two boys performing a sex act on each other. One of the boys was caught showing the video to younger students riding the school bus.

Weingart said this case was resolved, with the boy who showed the video being sentenced to probation and ordered to undergo counseling. Since the offense is the juvenile-court equivalent of a felony offense, the boy currently is classified as a sex offender, a designation that will remain with him unless it is dropped by the court upon the successful completion of his probation.

Therein lies the thorny legal issues for prosecutors created by the current law and advances in phone technology: Should juveniles charged with sexting-related crimes be designated sex offenders the same as an adult who commits a similar crime and be required to register with the sheriff where they live for at least the next 10 years or beyond?

"Even though what they are doing is wrong, the big question is should they be a registered sex offender?" Weingart said.

Walker agrees. "I don't believe a child should be a registered sex offender for sending a nude photograph (of themselves or someone else) to a boyfriend or a classmate. There's got to be a middle ground," he said.

Weingart said the prosecutor's office intends to meet this week with the juvenile court Magistrate Scott Washam and Judge Tom Baronzzi to discuss if they can find that legal "middle ground" by creating a diversion program for these offenders instead of formally charging them.

"Obviously, the sexual registration laws are important and protect people, but in situations like this there has to be some balance," she said.

Help may be on the way from a state legislator in Warren County, who plans to introduce a bill that would make sexting in any form a misdemeanor for juveniles, thereby eliminating the sex-offender registration requirement.

Weingart said prosecutors walk a fine line in deciding whether to file charges under the current law. The American Civil Liberties Union recently filed a lawsuit against a prosecutor in a Pennsylvania county for threatening to bring anti-pornography charges against three teenage girls over sexting.

"That's a concern because our office is trying to protect the public and do our job," she said.

Like Walker, Weingart said the prosecutor's office is offering to speak with school administrators about how to address the problem. Some school districts have been sued for seizing students' cell phones involved in sexting or trying to do something about sexting.

Meanwhile, the number of sexting cases being investigated has picked up speed in recent months, with Detective Walker saying he has received 10 such complaints during that period.



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