Massachusetts Governor Charlie Baker announced plans for legislation to reform criminal sexting penalties for teens, and, separately, add tougher laws for the release of what is know as “revenge porn”. The bill will be entitled An Act Relative to the Harmful Distribution of Sexually Explicit Visual Material.
In a press release, the Baker Administration emphasizes protecting the most vulnerable and giving prosecutors more appropriate tools and educational programming. As far as the criminal justice side goes:
“Should a case proceed to the juvenile justice system, this bill affords District Attorneys the discretion to decide whether a minor should be charged with a misdemeanor rather than a felony. The flexibility provided under this law will help ensure minors that do not belong in the juvenile justice system do not wind up there.”
Left unsaid is exactly why and how a minor who does not belong in the juvenile justice system might otherwise wind up there, other than being charged with a felony that everyone agrees is inappropriate.
Massachusetts still has outdated laws on sending or sharing explicit or nude images or videos via electronic message or text, i.e. sexting”, where a teen can be charged with felony distribution of child pornography. And there is currently no law against “revenge porn”, i.e. maliciously or with reckless disregard allowing consentually created pornographic videos or images to be posted publicly.
Proposed sexting reform for minors
The new proposed legislation under House Bill H.318 would:
- Create a misdemeanor offense instead of just the existing a felony child pornography offense, which is the only criminal statute available to prosecutors currently.
- Create an educational diversion program as an alternative to pursing a juvenile criminal prosecution for teens.
The proposal emphasizes the diversion to an educational program in cases where there is no “intent to harm”, but to emphasize the “consequences of their action”, said Lt Gov. Karyn Polito. Suffolk County DA Dan Conley added: “We don’t want to saddle the young adolescent with a sex offender registration requirement, so this is kind of a nice middle ground for us, to get accountability but more importantly to get educational value and stop this behavior from happening,” Conley said.
Is Law Enforcement Involvement Appropriate in All Teen Sexting Cases?
“The tools available to district attorneys and law-enforcement historically here have been very blunt instruments and haven’t been able to distinguish between kids making stupid decisions and real intent to cause harm,” Baker said.
Again, why are police and prosecutors spending time dealing with kids who make stupid decisions? Overpoliced schools is a real problem.
Law enforcement is simply not the correct tool in cases where there is no intent to harm. And it’s not the District Attorney’s job to educate kids, and “send a message” that “treating private imagery with discretion” is important.
Every societal problem or ill advised action does not require a law enforcement response. Especially when minors are involved. School programs and public awareness campaigns make much more sense than threats from District Attorneys.
Massachusetts Sexting Laws
Under existing law, there is absolutely no distinction in the child pornography statutes for underage persons willingly sending sexual images of themselves to other teens, or thoughtlessly distributing or sharing them more widely.
It still counts as a possession of or distribution of child pornography, which are very serious felonies and can immediately involve the department of youth services juvenile correction system. Possible penalties if convicted involves years of prison time, and life as a registered sex offender.
Most everyone agrees that these laws make no sense in the current context. Child porn laws were enacted to protect kids from adult predatory behavior, and never considered that kids would have access to photo and video equipment (and the means to share it with friends) in their hands 24/7. Thes laws does desperately need to be updated.
If law enforcement absolutely needs to get involved and there is 3rd party harm, malevolence, coercion, or damaging negligence, then a new youth educational diversion program makes sense. The most common type of pretrial diversion currently used in Massachusetts is for those between the ages of 17-21 facing a first offense non-violent crime. It requires monitoring, and usually community service and education class programs appropriate to the nature of the offense. The new law would add specific educational programs around the dangers of sexting.
Massachusetts Revenge Porn Laws
Using sexual image or video previously made with consent, but later distributing it without the other party’s consent is what as known as “revenge porn”. This can happen after a breakup by a spurned ex in an attempt to hurt or shame the other person (usually the woman).
Under the new law, making such sexually explicit photos or videos public would be a felony offense subject to penalties of up to 5 years in prison and a $10,000 fine, whether the motive is harm and embarrassment, or simply due to “reckless disregard”.
The current “loophole” is that there is currently no criminal law against publishing or distributing a video or image of an adult that was given or taken consensually. It is also sometimes difficult to trace and prove the origin of a video if it is uploaded anonymously to a video or amateur porn site. The only recourse for revenge porn in Massachusetts is through a civil defamation lawsuit.
According to Cybercivilrights.com, 35 other states have some type of revenge porn criminal law on the books. The Rhode Island House of Representatives recently passed a revenge porn bill by a wide margin which was endorsed the the state Attorney General Peter Kilmartin. This is a second attempt to pass a law that Governor Raimondo vetoed last year on free speech grounds, after declaring it “too vague”. Vermont passed it’s own revenge porn law 2 years ago.
Sexting Laws Reform Has Been Needed in Massachusetts for Some Time
Back in 2010 (! yes,this has been an issue for a while), there was a big national media story about the experience of a Falmouth dad whose son was accused of felony sex offenses for sharing a partially nude image of a girl. The image was originally sent voluntarily.
The Cape Cod Times recounted the story involving a father’s 13-year-old son along with several other boys being charged with a felony sex offense for distributing child porn, a partially nude image of a female classmate to several classmates.
Eventually, the charges were dropped by a juvenile court judge, but not until after an extensive ordeal where the father worried whether or not his son could be labeled a sex offender for life. There is a book that recounts their experience that reads as a cautionary tale against the out of proportion criminal penalties a child can face.
University of Colorado professor Amy Adele Hasinoff writes in “Sexting Panic” about the criminalization of consensual sharing, and the collision of privacy and consent in a social media world.
Sexting laws reform remains is a hot topic across the nation. Recent efforts to change state sex offender laws to account for juvenile behavior that most people agree doesn’t amount to predatory sex offenses or child pornography distribution has had mixed results. Some states like Arizona passed laws for just this purpose a few years ago, and the legislature in Colorado is having an active and lively debate about this now, and appears likely to pass a decent reform package.
It’s a positive trend, but there is still a long way to go before the statutes in Massachusetts and in every state catch up to the reality of teens using technology while under the influence of age-appropriate raging hormones. The laws were never written or adjusted to account for normal adolescent, if foolish, sexual exploration that could be interpreted as predatory sex offenses.
Consent is Critical in Both Laws
In the case of both new proposed laws, with the new revenge porn statute and teen sexting law changes, the key elements of either potential prosecution should be about consent.
Having a sexually explicit video that you made for private use, be distributed against your will in an act of revenge porn is a terrible violation. It is reasonable that this kind of cruel and exploitative harm should be a crime.
However, even the reforms that make consensual teen sexting a misdemeanor charge where police and courts need to get involved is completely misguided.
Yes, technically, minors can’t legally consent. But it is senseless to make this behavior a law enforcement matter at all, absent any coercion, exploitation, or outside harm.
Whatever danger there is to kids exploring their sexuality in the context of how they live their lives – through online communication – is a social problem. It shouldn’t be a legal one.