The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

Let’s Talk About Sext: Illinois’ Legislative Response to Sexting
by Carrie L. M. Thompson

The phrase, “I’ll show you mine if you show me yours” has been given a whole new meaning with the recent explosion of teens sending sexually explicit photos of themselves using the camera feature on their cell phones.[1] While this phrase has been a somewhat innocent part of sexual exploration humor for teens, it can now be taken as a serious invitation to instantly create and send nude or semi-nude pictures of oneself; a practice known as sexting.[2]    A 2008 survey done by the National Campaign to Prevent Teen and Unplanned Pregnancy shows that one in five teens has sent a ‘sext’ message of himself or herself to another person.[3]  What may be more surprising is the survey also found that 75% of teens acknowledge that sending these images can have serious consequences, yet 39% of those teens still send or post sexually suggestive text messages.[4]

Several problems occur when teens sext, leaving prosecutors and legislators unsure how to approach regulating this behavior.[5]  Since sexting is so novel and its explosive popularity has caught legislators off guard, the current laws of most states do not appropriately address the problem or how to punish it, leaving prosecutors with limited legal tools at their disposal.[6]

As a result, prosecutors have no choice but to turn to laws already in place, mainly child pornography or obscenity laws, and some legislators have followed in turn with sex offender punishment guidelines.[7]  Given that most state child pornography laws classify a child as someone under the age of eighteen, when teens create nude or semi-nude pictures of themselves and send the images via text message, potentially four crimes have been committed:  soliciting, producing, distributing, and possessing child pornography.[8] This problem is further compounded when considering a conviction for any of the above crimes could result in teens being labeled sex offenders and subject to lifetime registration and reporting requirements.[9]

The circumstances of sexting also make answering typical legal questions about the action, the actors, and the consequences difficult if not impossible to answer.[10] For instance, who is the victim? Normally the victim is easily identified as the party who has suffered some type of recognizable harm.[11] However, in the case of sexting the only possible actors are the creator, sender, receiver, and an unknown or unintended third party. Thus, in order to determine who the victim is, one must first ask, what harm has been caused? The answer is not entirely clear because the volitional nature of creating and sending a sext image suggests that no harm has occurred, primarily because the minor willingly participated in the event.[12] It is also possible that the receiver of the message did not wish to see the sext image, and the argument could be made that a minor is harmed by repeatedly receiving unwanted sexual images. However, even if harm is found and a victim identified, how is the offending party to be punished?  In light of the fact that the actors are minors, are typical adult punishments appropriate?[13]

These are only a few of the questions facing prosecutors and legislatures.  All we know for sure is that the practice of sexting will likely to continue unless answers to these questions are found.

Passed and Proposed Legislation. The good news is most state legislatures have not been ignoring the problem.[14] The bad news is this problem touches on so many areas of criminal, juvenile, and perhaps family law, that legislators have a hard time knowing where to begin.

The most progressive legislative efforts have come from Vermont Senate Bill No. 125.[15]  Vermont amended its child pornography laws to exclude application of such laws when the “person is less than 19 years old, when the child is at least 13 years old, and the child knowingly and voluntarily and without threat or coercion used an electronic communication device to transmit an image of himself or herself to the person.”[16] This language carves out a total exception for consensual sexting between teens in a specified age range, but ignores the consequences of the images passing, without consent, to a third party.

Other states have chosen to create entirely new sex offender laws to address the sexting problem.[17] In April 2009, House Bill 132 was introduced to the Ohio legislature. The Bill criminalizes a minor’s use of any type of telecommunication device to recklessly create, receive, exchange, send or possess a photograph or video that depicts a nude or semi-nude image of a minor.[18] Further, the Bill explicitly states that it will not be a defense to a charge under this proposed section that the minor created, received, exchanged, sent or possessed the image of him or herself.[19] Conviction under this statute would be considered a delinquent act by a minor or a first-degree misdemeanor if committed by an adult.[20]

Another approach taken by New Jersey Assembly Bill 4069 is to create a diversionary program for teens that create, exhibit, or distribute a nude image through an interactive wireless communication device or computer without malicious intent.[21] In order to be admitted to this program, a minor must: (1) not been previously found delinquent or convicted of a criminal offense; (2) not have criminal intent; (3) not have been aware of the harmful criminal sanctions that could be imposed and (4) be likely to not engage in the behavior after completing the program.[22] The program itself would teach teens about the legal and non-legal consequences of their actions including loss of employment or educational opportunities and cyber-bullying.[23] Admission and completion of this education program would allow the teen to avoid criminal prosecution.[24]

With so much confusion and uncertainty about sexting, many states have simply decided to devote funds to research the best legislative approach and or educate teens on the dangers of sexting.  The Indiana legislature proposed research into sexual development as related to criminal offenses.[25] Specifically, the legislature seeks to learn about: “(1) the use of cellular telephones to send explicit photographs and video (‘sexting’), especially by children; (2) the psychology of sexuality and sexual development; (3) the psychology of sexual deviants and deviancy; and (4) the mental development of children and young adults and how this affects the ability to make certain judgments.”[26]  Indiana would also like to create a sentencing policy that revises current statutes based on the findings of these studies.[27]

Similarly, New York has proposed a mandate on the Office of Children and Family Services to develop an educational outreach program.[28]  The program would be directed at teens and would emphasize the potential long-term dangers of posting nude or semi-nude images on the Internet or sending them via text message.[29]  Further, the Bill aims to establish an affirmative defense to criminal charges when the “defendant is less than four years older than the individual who received, sent or posted an image or photograph . . . where that individual expressly or implicitly acquiesced in the defendant’s conduct.”[30]

Illinois
’ Legislative Efforts. Illinois has not ignored the sexting problem.  As of January 1, 2011, Illinois has joined a handful of states that have adopted laws that specifically address sexting. Illinois Public Act 96-1087 provides that “a minor shall not distribute or disseminate an indecent visual depiction of another minor through the use of a computer or electronic communication device.”[31] A minor who violates this provision “may be subject to a petition for adjudication and adjudged a minor in need of supervision.”[32]  If a minor is found in need of supervision, he or she may be ordered to “obtain counseling or other supportive services to address the acts that led to the need for supervision; or . . . to perform community service.”[33] It is also important to note that the new law is not intended to “prohibit a prosecution for disorderly conduct, public indecency, child pornography, a violation of the Harassing and Obscene Communications Act, or any other applicable provision of law.”[34] 

While this attempt at regulation properly focuses attention on the most harmful aspects of sexting, when the images are passed to third parties and the creator loses control over them, this bill may not go far enough to protect minors. 

How Illinois’ Sexing Law Applies.
Consider a typical sexting scenario in which a sixteen-year-old girl, Jane, and a sixteen-year-old boy, Jon, are in a pre-dating relationship.[35] In the spirit of flirtation, Jane creates a sext image and sends it to Jon.[36] As long as Jon keeps the sext to himself, he will not be subject to the new law because receiving a sext and possessing it are not covered.  Likewise, Jane will suffer no legal consequences for her actions because under the new law Jane is free to create all the sext images of herself that she wants and send them to anyone she pleases.[37] Thus, in this initial exchange no crime has been committed by either party. 

Continuing the scenario, after a couple of days of possessing the sext image, the urge to show a few friends has overcome Jon so he decides to pass his phone around to a couple of friends between classes.[38] Seeing this sext, one of Jon’s friends, Adam, decides that he would like one for himself so he starts to repeatedly ask Jane for sext images. These two events are also not covered by Illinois’s new sexting law. When Jon chose to simply show his friends the image on his phone rather than send it “through the use of a computer or electronic communication device” he circumvented the new law and will not be punished. Also, Adam’s harassment of Jane for sext images will also go unpunished because requesting sext images is also not included in the statute.[39]

Returning to the scenario, assume that by now Jane regrets the first sext and does not want to create or send any more.[40] After a week of pressuring Jane for a sext image, Adam decides that perhaps if he sent a sext image of himself to Jane she might reciprocate.[41] So Adam begins to send unwanted sext images to Jane. Unbeknownst to Adam, Jane finds these sexts to be offensive and uses her phone to forward them to Jon in the hopes that he will be able to get his friend Adam to stop. Jon, however, becomes angry at Jane for having these sext images of Adam and later decides to send the original sext image of Jane out to the entire school.[42]

In this last series of events Illinois’s new law would finally come into play.  Astonishingly, the law would not apply to Adam, even though he repeatedly sent unwanted and offensive images to Jane. The new law provides Jane with no means to stop Adam from sending her unwanted sext images. However, the law does finally kick in when Jon sends the sext message out to the entire school, and as a consequence he will only be required to get counseling or community service.[43] Interestingly, Jane may also be adjudged a minor in need of supervision because she sent Jon the sext image of Adam.[44] Her actions of sending the sext to one person in the hopes of stopping Adam’s harassment would be treated the same as Jon’s malicious and reckless dissemination of Jane’s sext image to the entire school.

Room for Improvement. While this initial attempt at regulating sexting may be a step in the right direction, it does not go far enough to punish minors who recklessly send sext images on to unintended third parties and it lacks any effort to prevent the images from being created in the first place.

Given that the worst consequences of sexting occur when the initial creator loses control of the image, more severe punishments may be appropriate.  Take for instance the stories of Jesse Logan and Hope Witsell. Jesse Logan, of Ohio, was eighteen-years-old when she committed suicide after sext images that she sent to her boyfriend were forwarded around her high school by her boyfriend, after the two had broken up.[45] Logan was repeatedly bullied by other students who called her names and even threw things at her; ultimately causing her to take her own life. Similarly, in Florida, Hope Witsell sent topless photos of herself to a boy with whom she wished to begin a relationship with.[46] The photos then spread around the school and like Logan, Witsell was taunted until she finally hung herself. She was only thirteen-years-old.

In both of these tragic situations, these teen girls sent sext images with the intent that only the recipient view the images and when they were passed on to third parties, the girls were harmed by endless bullying. Recent news stories have also shown that long-term consequences of sexting occur when the images are passed around on social networking sites such as MySpace or Facebook and may ultimately come to the attention of future employers or colleges.[47]

It is here, where the recipient chooses to share the sext images with third parties that the potential for significant harm is likely to occur.  Illinois should consider following the lead of states that have proposed sentencing guidelines which take into account how many people the minor sent the sext image to and how many times the minor violates this prohibition.[48] Recall the earlier scenario where Jane and Jon’s actions were treated the same even though Jane only sent the sext to one other person while Jon sent it to hundreds of students.  Jane’s behavior should fall into a separate category than Jon’s, given that her intent was to stop Adam’s harassing behavior while Jon’s intent was to wound and embarrass Jane.[49]

Illinois would also be well-advised to develop educational programs on the dangers of sexting to prevent the images from being created in the first place. Without that first step, no harm can follow. Educational programs would be the best approach to informing teens of the consequences of their actions and to educate them about appropriate and safe relationship behavior.[50] Given the potential harms that can result from sexting, providing an educational program for teens who create, disseminate, or posses sext images will hopefully encourage teens to make well-informed decisions about their sexting behavior.[51] 

In the State of Ohio, the Montgomery County Prosecutor’s office has developed a diversionary program in which teens that are caught sexting may participate and if completed, may potentially avoid prosecution.[52] This program has an educational component as well as a community service and supervisory period if necessary.[53] The education program focuses on the legal consequences of sexting, the effects on the creator, acknowledgment of sexual boundaries, and responsible use of cell phones and the Internet.[54] Further these educational programs should be used as screening tools to assess the potential for other issues such as abuse or bullying.[55] Fortunately, some states have already proposed this approach and hopefully more will soon follow.[56]

The Problem Continues. The social and legal issues caused by sexting do not end here. [57] Teens have found a way to confuse and test the legal limits of criminal, juvenile, and family law resulting in drastically different viewpoints. On one end there is legislation that exempts teens from criminal punishment and on the other, court decisions requiring sex offender registration compliance.

Illinois has now joined other states in the effort to regulate sexting by only addressing the act of sending the image on to a third party. While this initial attempt is properly focused on the most dangerous aspect of sexting, the underlying issues and various scenarios must be examined in order to appropriately punish those who act maliciously, and to develop educational programs to stop the creation of sext images.     

As Judge Richard Posner commented, “the degree to which a disclosure of personal information inflicts harm on a person depends less on what information is disclosed than to whom and to how many, and to what use it is put by the persons to whom it is disclosed.”[58] This observation highlights the considerable balancing factors that should be taken into account when attempting to regulate this potentially harmful behavior.

[1] Murad Ahmed, Teen ‘Sexting’ Craze Leading to Child Porn Arrests in US, Times Online, Jan. 14, 2009, http://technology.timesonline.co.uk/tol/news/tech_and_web/article5516511.ece.
[2] Peter Cumming, York University, Address at the Roundtable on Youth, Sexuality, Technology: Children’s Rights, Children’s Voices, Children’s Technology, Children’s Sexuality (May 26, 2009) (transcript available at http://www.arts.yorku.ca/huma/cummingp/documents/TeenSextingbyPeterCummingMay262009.pdf).
[3] The National Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech, Results From A Survey Of Teens And Young Adults (2008) at http://www.thenationalcampaign.org/sextech/PDF/SexTech_Summary.pdf (summarizing survey results of approximately 1,280 teens and young adults about their sexting behavior) [hereinafter Sex and Tech Survey].
[4] Id.
[5] See Hannah Geyer, Sexting – The Ineffectiveness of Current Law in Addressing the Phenomenon, ABA Criminal Justice Section, Juvenile Justice E-Newsletter, June 2009 (No. 3), http://www.abanet.org/crimjust/juvjust/newsletterjune09/june09/sexting.htm.
[6] Mary Graw Leary, Self-Produced Child Pornography:  The Appropriate Societal Response to Juvenile Self-Sexual Exploitation, 15 Va. J. Soc. Pol’y & L. 1, 6 (2007).
[7] See Geyer, supra note 5.
[8] See, e.g., 720 Ill. Comp. Stat. 5/11-20.1(a)(2009).
[9] See Robert D. Richards & Clay Calvert, When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case, 32 Hastings Comm. & Ent. L.J. 1, 9 (2009).
[10] Clay Calvert, Sex, Cell Phones, Privacy, and the First Amendment:  When Children Become Child Pornographers and the Lolita Effect Undermines the Law, 18 CommLaw Conspectus 1, 8-9 (2009).
[11] See, e.g., Crimes and Crim. Proc. 18 U.S.C.A. §3771(e) (2009).
[12] See, e.g. A.H. v. State of Florida, 949 So. 2d 234, 237 (Fla. 2007).
[13] In re Stanford, 537 U.S. 968, 970-71 (2002) (Stevens, J., dissenting from denial of certiorai) (noting that in general juveniles lack responsibility for their crimes because of their impulsiveness and lack of maturity).
[14] See National Conference of State Legislatures, 2010 Legislation Related to “Sexting, Sept. 4, 2010, http://ncsl.org/default.aspx?tabid=19696 (last visited Nov. 9, 2010).
[15] S.B. No. 125, 2009-2010 Leg. Sess. (Vt. 2009).
[16] S.B. No. 125, 2009-2010 Leg. Sess. (Vt. 2009).
[17] H.B. No. 132, 128th Gen. Assem., Reg Sess. (Ohio 2009).
[18] Id.
[19] Id.
[20] Id.
[21] Assem. B. No. 4069, 213th Leg., Reg. Sess. (N.J. 2009).
[22] Id.
[23] Id.
[24] Id.
[25] S. Res. 0090, 116th Cong. Gen. Assem. (Ind. 2009).
[26] Id.
[27] Id.; see also Virginia State Crime Commission, “Sexting” (Sept. 16, 2009), http://vscc.virginia.gov/Sexting.pdf. This commission was created to examine the problem of sexting and it concluded that it had three options: (1) keep the status quo, (2) create new laws directed at sexting, (3) or develop educational programs for teens. Id.
[28] Assem. B. No. A08622, Reg. Sess. (N.Y. 2009).
[29] Id.
[30] Id.
[31] 705 Ill. Comp. Stat. 405/3-40(b).
[32] 705 Ill. Comp. Stat. 405/3-40(c).
[33] 705 Ill. Comp. Stat. 405/3-40(d).
[34] 705 Ill. Comp. Stat. 405/3-40(e).
[35] Sex and Tech Survey, supra note 3, at 2 (explaining that “21% of teen girls and 39% of teen boys say they have sent [sext messages] to someone they wanted to date or hook up with”).
[36] Id., at 4 (finding that “among teens who have sent sexually suggestive content . . . 66% of teen girls and 60% of teen boys say the did so to be ‘fun or flirtatious’”).
[37] 705 Ill. Comp. Stat. 405/3-40(e).While PA 96-1087 will not regulate this conduct, it is still possible that she could be charged with disorderly conduct, child pornography, public indecency, a violation of the Harassing and Obscene Communications Act, or any other applicable provision of law. Id.
[38] Sex and Tech Survey, supra note 3, at 3 (noting that “25% of teen girls and 33% of teen boys say they have had nude or semi-nude images—originally meant for someone else—shared with them”).
[39] This conduct may be covered by the Harassing and Obscene Communications Act, 720 Ill. Comp. Stat. 135/1-2.
[40] Sex and Tech, supra note 3, at 3 (explaining that “75% of teens . . . say sending sexually suggestive content ‘can have serious negative consequences’”).
[41] Id. at 4 (finding that “44% of both teen girls and teen boys say they sent sexually suggestive messages or images in response to such content they received”).
[42] Deborah Feyerick & Sheila Steffen, ‘Sexting’ Lands Teen on Sex Offender List, CNN, Apr. 8, 2009, http://www.cnn.com/2009/CRIME/04/07/sexting.busts/index.html (reporting the story of Philip Alpert, who after hearing an angry voicemail from his girlfriend, decided to get revenge by signing on to his sixteen-year-old girlfriend’s email account and forwarding nude pictures to seventy or so recipients, including her parents). 
[43] 705 Ill. Comp. Stat. 405/3-40 (d).
[44] 705 Ill. Comp. Stat. 405/3-40 (b)-(c).
[45] Mike Celizic, Her Teen Committed Suicide Over ‘Sexting’, Today, Mar. 6, 2009, http://msnbc.msn.com/id/29546030/.
[46] Michael Inbar, ‘Sexting’ Bullying Cited in Teen’s Suicide, Today, Dec. 2, 2009, http://today.msnbc.msn.com/id/34236377/.
[47] Bonnie Rubin & Emma Fitzsimmons, Social-networking Sites Viewed by Admissions Officers: Survey Shows Some Use Facebook, MySpace as Another Aspect to College Application, Chi. Trib., Sept. 20, 2008 (reporting that “10 percent of admissions officers from prestigious schools said they had peeked at sites like Facebook and MySpace to evaluate college-bound seniors. Of those using the profiles, 38 percent said it had a ‘negative impact’ on the applicant, according to Kaplan Inc., the education services company that polled the officers”).
[48] S.B. No. 1266, 49th Leg., 2nd Reg. Sess. (Ariz. 2010) (proposing that a minor be charged with a petty offense if the sext was passed to one other person and a class 3 misdemeanor if passed to more than one person); see also H.B. No. 1357, Reg. Sess. (La. 2010) (providing increasing levels of punishments for first, second, and third offenses).
[49] The original House Bill 4583 acknowledged this difference when it addressed the intent of a minor who disseminates sext images to “injure the reputation of the other person or with the intent to cause emotional distress to the other person.” H.B. No. 4583, 96th Gen. Assem., Reg. Sess. (Ill. 2009).
[50] See Mathias H. Heck, Jr., Sexting and Charging Juveniles—Balancing the Law and Bad Choices, 43Mar Prosecutor 28, 28-29 (Mar. 2009).
[51] Calvert, supra note 10, at 64-65. Further, many educational websites, such as, www.wiredsafety.com and www.thatsnotcool.com, have developed teen friendly videos that could assist parents and educators in developing such educational programs while also providing advice for teens. See http://www.wiredsafety.org/; http://www.thatsnotcool.com/.
[52] Heck, supra note 52, at 29.
[53] Id.
[54] Id.
[55] Susan W. Brenner & Megan Rehberg, “Kidde Crime”? The Utility of Criminal Law in Controlling Cyberbullying, 8 First Amend. L. Rev. 1, 14 (2009).
[56] See Assem. B. No. 4069, 213th Leg., Reg. Sess. (N.J. 2009).
[57] See Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009). In this case, the parents of three teen girls, who had sent sext images to boys in their school, filed for a temporary restraining order against district attorney, Skumnaick for violation of their First Amendment rights. The order was granted which effectively prevented him from pursuing possession and distribution of child pornography charges against the girls. Id.
[58] Richard A. Posner, Privacy, Surveillance, and Law, 75 U. Chi. L. Rev. 245, 249 (2008).

Carrie L. M. Thompson received her J.D. in 2011 from Northern Illinois University College of Law and a Bachelor of Arts from Luther College in 2005 with a double major in Political Science and Communication and a minor in Psychology. Carrie has an interest in criminal law and is currently seeking a position as an assistant state’s attorney. She can be reached at clmthompson@gmail.com.

 
 
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