Congress needs to pass a bill that sets out national guidelines for sentencing “sexters” that presumes that minors have no intention to disseminate child pornography and that the penalties for such behavior should granted by school boards instead of courtrooms, outside of the most egregious offenses. States have thus far proven incapable or unwilling to create schemas that take into account the age and intentions of the adolescents implicated as “sext” offenders. It has led to the criminalization of adolescent, private, sexual activity.

Sexting or the process where individuals send sexually explicit images or text messages to others through cellular phones, predates its recent notoriety and in states’ struggle to catch up with the activity, they have created overly broad legislation. Sexting is the result of internet, which has created an arena where individuals can produce, and consume media that expresses their sexual desires, no matter how deviant. Apparently fearful of the ease with which child pornography can be disseminated across the internet, lawmakers have responded to this activity by creating exceedingly harsh penalties aimed at those who seek to exploit minors through web-based channels. In Florida in January of 2007, a sixteen-year-old girl (A.H.) and her 17-year-old boyfriend (J.G.W.) were made tragically aware of these over-inclusive statutes. Each teen was charged with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child—themselves.

This is not entirely surprising because as Carolyn Atwell-Davis, the Vice President of Policy and Government Affairs at the National Center for Missing & Exploited Children states, “There are four actors in every sexting case, the photographer, distributor, the recipient and the individual depicted.” (C. Atwell-Davis, personal communication, July 2009). The flaw in most sexting prosecutions is that the alleged offender often constitutes most of these positions, and the primary and substantial damage caused, if any, by the sexting is to the individual being prosecuted. The harm caused is reputational, and though the law recognizes reputational harms such as slander and libel, it does not seek retribution against one who has supplied false information that has sullied his own reputation. It is confusing as to why it would seek redress against one who has sullied their own reputation through the dissemination of suggestive images, who, though a minor, has no intention to profit off such activity as to implicate other forms of criminality. The argument can be made that the State is seeking redress on behalf of citizens for actions that offend public notions of morality, or that it is protecting the children from themselves through a penal deterrent—a potential usage of the states’ parens patrie power. But both of these claims are undermined by the public policy underlying child pornography statutes—to combat the intentional sexual exploitation of children.

If the morality behind child pornography laws is that society considers conduct odious which profits from the exploitation of society’s most vulnerable, it will not be achieved by prosecuting sexters. The common theme in most “sexting” cases is that the perpetrator is an adolescent who has exchanged suggestive images of himself or herself with another adolescent with whom they are romantically involved. Such persons are not envisioned by legislative schema designed to deter and prosecute individuals that financially profit, or provide financial incentives to those who profit off pornographic depictions of minors. Nor are these penalties effective if they are an attempt to deter minors from engaging in “sexting” behavior because in most of these cases minors lack notice of the illegality of their actions. Further, such applications of child pornography laws are often in congruent with the state’s established legal schema.

As Justice Padovano observes in his dissent to the A.H. decision, the Court has decided in B.B. v. State, that the right to privacy is also extended to children. In B.B., a minor was charged with unlawful sexual intercourse though both individuals were under-aged. He concludes, “If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor.” Padovano’s logic is sound; essentially the court is arguing that it is legal for minors to have sex, but illegal for them to “sext” even if it is not distributed beyond the two participants. If the underlying conduct is legal then it less likely, that recording such activity is illegal or should be treated severely. Padovano’s analysis illustrates the extent to which the local governments have struggled to write legislation that codifies justice in a world where technology has made child exploitation more readily achievable.

Given its relative remoteness from local pressure in places such as in Florida and Arizona which have some of the more stringent child pornography laws in the nation, the federal government is in the best position to articulate a clearer vision of how sexting offenses should be considered nationally. The federal governing bodies are less beholden to more conservative constituencies. Sexting is often an interstate activity and the states differ in their degree of leniency in regards to the practice. The difference in potential penalties, for the same offense, if committed in a different state may be so disparate that it will be difficult to justify allowing the interstate diversity to exist. Unlike the benchmark for statutory rape, which also varies across the states, a collective community conscience does not exist to inform individuals about the potential illegality of their sexting actions. Nor is there a threat of adolescents being coerced into these digital exchanges by older parties because most sexters are virtually the same age. So it makes less sense for states to impose a strict liability penalty upon sexters. Congress must act to promote a schema of leniency because the states have shown that they will not. Instead, states are now punishing the same adolescents they have repeatedly failed to educate about the dangers of their internet and sexual behavior.

Dr. McQuade? of the Rochester Institute of Technology, who in January of 2008 concluded the largest cybercrime research study, which involved both students and teachers, says that society should not be surprised that sexting exists. He argues that, “As long as we continue exist in a society in which we attempt to legislate and advocate morality through abstinence-only policies, it can be expected that adolescents will fail to be adequately educated about sexual precautions and related activities such as ‘sexting.’” (S. McQuade? , personal communication, July 2009). The incomprehensible sexting laws are essentially a derivative of the current regime that is uneasy to converse with adolescents about their sexual activity. This does not mean it is too late to have a discussion with adolescents after “sexting” is discovered. But the conversation should be with parents and school administrators, not prosecutors. Since the states are reluctant to return these private conversations to households and school auditoriums, Congress must assume the task.