Vail Daily column: Prosecutors grapple with teen sexting consequences
February 23, 2016
Kids these days.
As Paul Lynde sang as Paul McAfee in the 1963 film, "Bye Bye Birdie,"
"Kids, I don't know what's wrong with these kids today.
"Kids, who can understand anything they say?
"Kids, they are disobedient, disrespectful oafs.
"Noisy, crazy, sloppy, lazy, loafers."
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OK, besides it being dated and unfair, that's a little much. And the kids Lynde was crooning about were, well … us — this generation's moms and dads.
But sexting, who'da thunk it?
Well kids, of course. But to be completely fair, it's not just kids. Although I'd bet a Krackel Bar that kids were who first thought it up.
So exactly what is sexting and why the focus on kids?
You may remember the recent scandal in Canon City. Although it's certainly not the only case, it was there that a couple hundred high school kids thought it would be a splendid idea, to share intimate pictures of themselves with their classmates.
While I'll leave the morals to the moralists, let's touch on the legal bits.
Under a strict reading of the law in this state, any teen who takes, shares or receives a nude photo of someone under the age of 18 — even if consensual — commits a crime. To be specific, the crime is a child pornography offense, the sound of which curdles most decent people's blood.
One must raise if a distinction must be carved between abuse — which is what child pornography laws are meant to protect against — and privacy which is what may really be at stake when one teen shares intimate photos with another. Although few adults would argue that sexting is at least dangerous, if not legally wrong, who knows where the pictures might one day end up? The question does arise as to whether what's wrong with sexting is what the child pornography laws were indented to address.
A little-known secret is what justice you get may depend upon who is administering it. In short, district attorneys have broad discretion in determining what offense to charge or whether to charge any offense at all. In a delicate matter such as sexting in which the photos are consensual, there is often a diplomatic balancing. On the one hand, the law says that an offense has been committed. On the other, teen judgment is often lacking and to saddle a teen with a felony offense — especially a sexual offense — can be crippling. While some district attorneys might come down with a hammer, others might say, "Not so fast. Might not counseling be better?"
In Jefferson and Arapahoe counties, prosecutors have been struggling to come up with a scheme that impresses the seriousness of the offense without direct court involvement. No one wants to see a kid who is nothing worse than stupid and boiling with hormones have his or her future destroyed over sharing photos that were consensually transmitted. The goal here is to educate rather than to prosecute. The objective of the law, one must remember, is, in the last analysis, to do justice. And justice can sometimes be a many-headed Hydra.
Some are considering legislation to carve out an exception for consensual teen sexting. One solution might be to make such sexting among teens a misdemeanor offense with discretion afforded to district attorneys to charge a felony if the particular circumstances warrant. For now, though, the offense remains a felony with lifelong consequences.
In the end, the Canon City kids were not charged with a crime. The community stood behind them and the district attorney did not think that justice would be served by rounding up half the school and making felons of them.
Kids be forewarned, though, in another county under other circumstances, the outcome might be much, much different and if you are caught sexting, you very well might be in for a lifetime of woe.
One further word — if an adult is sexting (either sending or receiving) intimate photos of those underage, the door will slam shut regardless of consent. A person under the age of majority is legally incapable of consent. No ifs, ands, or buts about it. When your brain is fully formed, you are expected to know better. And if you don't, the thunder of the law will boom.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, email@example.com and firstname.lastname@example.org.
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