I testified today in the House Public Health Care and Human Services committee (my comments start at around 1:38:00) hearing against a new sexting misdemeanor bill that’s making its way through the Colorado legislature.
The bill would create a new misdemeanor crime (or a petty offense, if an amendment is accepted) for sexting, which has happened already in almost a dozen other states. This is the wrong approach because it means that if someone is victimized by a privacy violation, a prosecutor can still choose to charge the victim with child pornography offenses or can charge them under the new laws instead. Or they can choose not to charge victims at all.
The DAs testifying at the hearing today said that they have not and would not charge victims. They said that we should trust that they won’t. Perhaps most prosecutors are indeed refraining from using child pornography charges against teens. After all, only 7% of child pornography production arrests in 2009 were of teens involved in consensual sexting. So, most prosecutors are refraining. But certainly not all are.
My concern is that if prosecutors have the option to use a misdemeanor or a petty offense, there will be a lot more prosecutions of consensual sexters. Since child pornography charges are so harsh and extreme, most prosecutors are not using them against teens.
But they would, it seems, like to charge a lot more teens with some kind of crime for consensual sexting. It was clear at the hearing today that many people think that consensual sexting is a deviant behavior that can and should be prevented with the threat of criminal charges. It can’t and it shouldn’t.
I was particularly appalled at the way people spoke about Hope Witsell‘s suicide. This tragic story of a girl whose nude image was passed around without permission demonstrates the deadly effects of slut-shaming. Yet, people testified that this misdemeanor bill might have prevented Hope’s death.
I strongly disagree with this interpretation because criminalizing consensual sexting increases the harm for teens like Hope. This is because after their privacy is violated, it piles on even more slut-shaming by telling them that their consensual sexting was a crime too. In fact, the law tells teens like Hope that she committed the exact same crime as the person who violated her privacy.
Perhaps people believe that making sexting a misdemeanor sends a message that it’s wrong and teens shouldn’t do it. As we know for teen sex, the abstinence message is not going to work–instead it backfires and creates more risk and more harm. Indeed, the message that sexting is deviant and wrong is going to potentially create more cases like Hope’s, because it tells victims that they are to blame for their victimization.
Victims of privacy violations need our unqualified support. Just like victims of sexual assault, we need them to know that their victimization was not their fault. Only perpetrators should be held accountable for the harm they cause. Laws against sexting–including the existing child pornography laws and the new sexting laws–all contribute to further harming victims like Hope.