The Denver Post just published an editorial supporting Colorado’s proposed sexting misdemeanor bill: “Colorado teen sexting bill gives DAs proper tools.”

It seems that they particularly disliked my NYT op ed:

In an op-ed Monday in The New York Times, Hasinoff wrote, “These new laws may seem like a measured solution to the problem of charging teenage sexters with child pornography felonies. However, once they have the option of lesser penalties, prosecutors are more likely to press charges — not only against teenagers who distribute private images without permission, but also against those who sext consensually.”

We very much doubt her forecast. In our crystal ball, prosecutors are likely to press charges when there have been complaints, and complaints will generally occur when someone’s nude photo is shared without permission or when someone receives a photo they did not request.

Many prosecutors are reasonable and will indeed only press charges on legitimate complaints, and only against those who’ve committed acts of harm.

But let’s not forget about the research on this topic. The Post no doubt saw an earlier sentence in my op ed that explained: “The University of New Hampshire’s Crimes Against Children Research Center estimates that 7 percent of people arrested on suspicion of child pornography production in 2009 were teenagers who shared images with peers consensually.”

Given that, we cannot trust all prosecutors to only press charges against people who share photos without permission or send unwanted photos to others. I don’t need a crystal ball to predict that some prosecutors will charge consensual sexters. I have research, which says that they have and suggests that they will continue to do so. And that study is of child pornography production arrests. Many prosecutors are hesitant to press felony charges against teens. But if I’m going to pull out my own crystal ball, I’d say that they won’t be so hesitant to use misdemeanor charges against teens.

If prosecutors don’t want to charge consensual sexters or victims of sexting-related abuses, the solution is simple: amend the new sexting misdemeanor so that they can’t. It’s a simple fix that protects victims and consensual sexters alike. All they’d need to do is provide an affirmative defense that the image was produced, possessed, and shared consensually.

If prosecutors truly don’t intend to charge victims or threaten them with charges–which adds trauma and harm to someone who’s already be grievously violated–they should have no problem amending the misdemeanor to exclude people who’ve done nothing to harm another person.

Addressing harm

And while it’s all well and good to talk about the consensual exchange of nude photos between, say, two 15-year-olds, the fact is they lose control over those images forever. Are they really mature enough to understand the implications — how they’ll feel, for example, if their partner sends out those pictures six months or six years later to dozens of friends?

There’s some interesting research that sexual violence is unique among crimes in that it’s often discussed in the passive voice. Journalists writing news articles tend to give agency to the perpetrator when their crimes are murder, assault, or theft (“a man shot two people yesterday”) but erase agency when their crimes are sexual (“a woman was allegedly sexually assaulted yesterday”). So I take note here when the Post writes: “they lose control over those images forever.”

Of course it’s true that people who share any information with anyone no longer have control over it. That applies to your health records, your financial information, and your sexts. The difference is, we have laws to protect you from privacy violations for the first two types of information, but not so much the last one. You don’t simply “lose control,” in any of those cases–a specific person has to mistakenly or maliciously decide to violate your privacy. And until we can develop better ways to hold that person accountable, we are all at risk.

And finally, I agree that teens (like adults!) may not foresee the possibility that an image they share consensually may later be distributed without their permission. After all, most people do not expect their intimate partners to harm them, but it happens. Indeed, this happens to around 10% of teen sexters, and it can be seriously traumatic and humiliating.

This is the key difference between laws against teen sexting and laws against teen drinking–we owe the utmost compassion to traumatized victims of privacy violation. Giving them that compassion means laws must exempt them from being prosecuted alongside the perpetrators who violated their privacy.

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