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Sexting: Should Teens Be Prosecuted?

BettyConfidential.com's correspondent Lisa Bloom will appear on "Dr. Phil" on Thurday, April 16, to discuss sexting

-Lisa Bloom

Sexting is a new word for the most obvious thing an adolescent will do with a new camera phone: snapping a picture of a forbidden body part, or videoing sexual activity, and then sending it around to friends.

Prosecutors, on a mission to protect kids from themselves, have deemed sexting to be possession and distribution of child pornography, and have subsequently commenced a rash of felony prosecutions against minors. Prosecuting kids for sexting?

In at least a dozen states, kids have been arrested or charged with child porn crimes that carry with them possible penalties of many years in prison, and mandatory lifetime registration as sex offenders. The phenomenon is so prevalent that suspects can find specialist attorneys at sextinglawyer.com.

Have we lost our minds?

In a recent Pennsylvania case, six teens aged 14 to 17 were charged with creating, distributing and possessing child porn. A 14-year-old New Jersey girl is charged with distribution of child porn for posting sexually explicit photos of herself and her boyfriend on MySpace. In October a Texas eighth-grader spent the night in a juvenile detention center after his football coach found a nude picture on his cell phone that a fellow student sent him.

This is lunacy. Sure, sexting is a terrible idea. Jesse Logan, an 18-year-old Cincinnati teen, committed suicide after her ex-boyfriend emailed around naked cell phone photos of her. Logan was harassed daily by other girls calling her "slut" and "whore" and throwing objects at her. Kids who forward pictures without the subject's consent, to demean and torment another, should suffer consequences. But girls have been told if they came forward and admitted they have been involved in sexting, they would be charged themselves as child pornographers.

Here's why we must stop this nonsense immediately, and return some sanity to our criminal justice system:

1. Charging kids for taking pictures of their own bodies violates the spirit of the laws. The purpose of strict child porn laws is to protect children from exploitation by adults. This is analogous to statutory rape laws in most states, which criminalize sex between, say, 25-year-old adults and 15-year-old kids, but not between two 15-year-olds. We get that the power imbalance is so great that an adult-underage adolescent sexual relationship is inherently exploitative. And most of us get that two kids groping each other is a normal part of growing up. Adding a camera does not change that.

2. We are already #1 in the world in incarcerating our own kids. Sad but true. Amnesty USA decries our penchant for throwing underage American kids in prison, often adult prisons, for petty crimes. Locking up kids significantly increases the likelihood that they will become hardened criminals. Incarcerated teens are four times more likely to commit suicide.

3. Sexting hysteria diverts scarce resources from more worthy criminal justice needs. Thousands of rape kits sit on a shelf untested in Chicago, the rapists roaming free. DNA testing that could exonerate death-row inmates? Too expensive to order in most cases, states argued before the Supreme Court last month. But we find the money for police, prosecutors, public defenders, court personnel, judges and prisons in cases against knuckleheaded kids for emailing body-part pictures to their beaus?

4. Allowing teens to be charged as felons for sexting gives way too much authority to power-drunk local prosecutors. Last week a federal judge stepped in to tell a rural Pennsylvania prosecutor to stop threatening teenage girls with arrest if they refused to take a plea and go to mandatory classes he demanded. Two of the girls were wearing bras and towels in the photos, no naughty bits exposed, no sexual activity.

5. It's a parenting issue. Don't give your kids the technology without educating them about the consequences of misuse. Monitor their online behavior. Check their phones. One blurry boob picture and they lose the phone and computer for a week. Oh, will they scream! Their heads will explode! They will HATE you, Mom, you are so mean! What-ever. Beats trying to sneak snacks to them at the Big House, and little Johnny's lifetime registration as a sex offender.

6. Oh, the hypocrisy. A national poll revealed that 20 percent of teens have sexted. Another says 33 percent of adults have done it. I unscientifically surveyed a bunch of my otherwise responsible, mature grownup friends. One hundred percent confessed to sexting at least once, most giggling at the silliness of the memory. Shall we lock up one in five kids for doing what a larger number of adults do?

Compassion, out of vogue in our hang-‘em-high criminal-justice system these days, would really go a long way. Have we adults, who make the rules, forgotten what it was like to be post-pubescent, with raging hormones and weird new bodies? We just didn't have the technology. We should thank the Almighty that our high school antics of mooning, flashing, and sex in parking lots were not digitally preserved, in a prosecutor's court file somewhere, Exhibit A against us as we faced prosecution for sexting, staring down a decade in prison and a lifetime of registering as a sexual predator.

Let he who never Xeroxed his butt cast the first stone.

Lisa Bloom hosts "Lisa Bloom Open Court" daily on the legal network, In Session, on truTV 9-11 a.m., and is a CBS News Legal Analyst.