Just out, a new article I wrote for Teen Vogue on revenge porn: “What to Do If You’re a Victim of Revenge Porn.”
Most PSAs about sexting tell girls “just don’t sext.” Yet we know that abstinence-only is ineffective, and that this approach blames victims instead of addressing the real problem.
The Canadian Centre for Child Protection recently posted a remarkable video aimed at teens about sexting and privacy violations. It is one of the few PSAs I’ve seen that blame privacy violators rather than victims:
What’s unique about this PSA is that it does not shame the girl for sexting in the first place. Instead, it blames the blame for wrong-doing on the person who shared her image without consent. The girl says, “I trusted him,” which highlights that he broke that trust.
In Canada, teens are better protected from prosecution for child pornography, as long as they sext consensually and within a private, intimate relationship. However, teens cannot consent to the distribution of their images outside the privacy of that relationship. I advocate that the US should adopt a similar reform to child pornography laws.
The video ends with the message: “it’s your body/ it’s your image/ TAKE BACK CONTROL.” This is something I’ve also never seen in a sexting PSA–the idea that girls, in particular, are entitled to ownership over their sexual images. Indeed, that is a key argument of my book, that we should look at sexting as media production and thus grant those who produce sexual images of themselves ownership rights. The point is to respect teens (especially girls’) sexual autonomy in order to better protect them if they are victimized by a privacy violation.
One of the main arguments for decriminalizing consensual teen sexting (with age spans) is that it would prevent victims from being charged. District Attorneys and others who are opposed to this change often claim that law enforcement would never do such a thing, so therefore no legal reform is needed.
This 2016 report on on “sextortion” from the Crimes Against Children Research Center provides new evidence that teenage victims of privacy violations (or threats, or other related harassment) are indeed sometimes threatened with prosecution under child pornography laws:
When victims were minors, perpetrators were often breaking criminal laws about the production or distribution of child pornography, but respondents feared they were vulnerable to criminal charges also. Some respondents [victims of “sextortion”] who described incidents that occurred when they were minors had been threatened with charges or blamed. So in many cases described in the survey, perpetrators were shielded from criminal consequences and respondents had little support from authorities. (p. 55)
Some examples from this survey:
“I was the one who ended up getting in legal trouble since I was the one who sent it.” Female, 16, f2f
“I was told I could be held responsible for making and distributing child pornography.” Female, 14, f2f
“The police threatened to bring me up on charges of distribution of child pornography.” Female, 17, online
“My boyfriend sent my whole family and his friends and my friends the photo. [My family and I] tried to press charges [and get a restraining order against him]. Him and I both looked at jail time, fines, and having to register as a sex offender for ‘child pornography’ since we were both under 18. Luckily, the state [did not press charges].” Female, 15, f2f
“I feel really intensely angry that you can get in legal trouble for sending naked pictures of YOURSELF when under 18. You literally can be charged as a sex offender for it, which is so incredibly wrong because I was the victim. All that law does is protect abusers…” Female, 17, online (p. 52)
The report makes this important recommendation for law enforcement:
[A]s with other sexual assault victims, police need to be trained to focus on perpetrator behavior to avoid exacerbating the sense of shame and self-blame that many victims feel.
In addition, law enforcement agencies need to review policies that lead them to charge young victims of sextortion with child pornography offenses or threaten to do so. Such policies, or victims’ fears of such policies, appeared to deter police reporting of perpetrators who victimized minors and increase the distress of victims who felt they could not get justice. (p. 63)
I wish we could trust prosecutors to never use child pornography charges against teens who sext consensually, but unfortunately we cannot. As we know, in 2009, approximately 7% of all child pornography production arrests are teens who’ve only engaged in consensual sexting. How many of those were youth of color? How many were gay or trans?
This recent case in Louisiana illustrates why we need to decriminalize consensual sexting–it’s no surprise that an African American teenage boy was charged here and the white girl he was sexting with was not. Neither should face any charges for consensual sexting!
The most recent research I’m aware of on how often prosecutors use child pornography laws against teens is a study estimating that 7 percent of people arrested on suspicion of child pornography production in 2009 were teenagers who shared images with peers consensually.
I would love to see some studies of that provide more recent data. And I look forward to future research on how often prosecutors use new sexting misdemeanor laws against consensual sexters and against victims.
In the meantime, a few recent cases illustrate the need for legal reform to child pornography laws, since prosecutors are still trying to apply child porn laws to teenagers:
- Bossier City, Louisiana (April 2016): “17-year-old black boy sexting with 16-year-old white girl and guess who’s charged with child pornography.”
- Fayetteville, North Carolina (Sept 2015): “N.C. just prosecuted a teenage couple for making child porn — of themselves“
- Plymouth, MA (Jul 2015): “Six Plymouth students charged in sexting incident“
- Washington (2014): “In ‘sexting’ case Manassas City police want to photograph teen in sexually explicit manner, lawyers say“
Some high-profile cases that are less recent:
- Harrisburg, PA (2010): ““Sexting” Leads to Child Porn Charges for Teens“
- Tunkhannock, PA (2009): “ACLU Sues Prosecutor Over ‘Sexting’ Child Porn Charges“
I hope to add more cases to this page, so please comment or contact me if you come across others.
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.
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.
Here’s my op ed in the New York Times today: “Teen sexting is not child porn.”
I love that the graphic is not the typical “sexy girl sexting” image that often accompanies stories about sexting.
I was on CBS This Morning today talking about the opposition to Colorado’s proposed sexting misdemeanor bill:
I don’t really understand the analogy to voting rights that the anchor makes at the end. After all, it’s not like all teens technically can vote, but then if they do cast a ballot, it’s a crime. That’s the difference with sexting that is so important to understand: one-third of 16- and 17-year olds are sexting, whether it’s a felony, misdemeanor, or not. We have to deal with that reality rather than dreaming that we might bring that rate down to 0%. It’s not going to happen.
Criminalizing all sexting doesn’t stop it from happening, it just harms victims (because they won’t report if it means they’re guilty of the same crime), sends a dangerous slut-shaming message to girls who sext consensually, and gives law enforcement too much power to police consensual teen sexuality.
Sexual assault is a problem, but we don’t try to solve it by banning all sex. Instead, we have laws that are only against sexual assault. Sexting works the same way–it doesn’t make sense to ban all sexting, we need narrowly tailored ways of addressing harmful behaviors like sharing or creating a sexual image without permission.
The comment at the end of the video about “an opponent said that we don’t ban teen sex outright, so we shouldn’t ban sexting” was from me. This is great because reporters usually don’t cite (either they don’t cite specifically, or sometimes don’t cite at all) the things they agree with. Common sense needs no citation.
But opposed to sexting Bill, CU-Denver prof testified there’s no evidence sexting is harmful pic.twitter.com/2NFTymv1Pr
— Kristen Wyatt (@APkristenwyatt) March 15, 2016
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.