Sexting, the act of sending sexually explicit messages or pictures via text message is not criminal, and rightly so. What consenting adults choose to text one another should be of little concern to society or lawmakers with limited and clearly defined exceptions such as national security and criminal investigations. However, when these sexually explicit messages are exchanged between minors it becomes an issue of serious concern ripe for legislative action and the inevitable overcriminalization that follows.
Although overcriminalization has many causes it often rears its ugly head in the form of hastily enacted legislation that is a direct response to current events. In the past few years this troubling pattern has played out in response to teen sexting. The impulse behind these laws is usually some form of 'if there is a problem, make it a crime.' Unfortunately laws passed in this fashion are rarely well thought out, effective, or reasonable. These problems are further exacerbated when the subject matter involves technology and emerging issues like sexting. Lawmakers rarely take the time to understand the issues because political concerns demand immediate action. The result is broad laws that criminally punish acts that don't amount to criminal behavior.
Like all potentially criminal activity instances of teen sexting fall into a range, from not criminal to clearly criminal. There have been wildly publicized occurrences of sexting on both ends of the spectrum, from two teens mutually agreeing to share pictures of one another to large scale trading of images between dozens of people and the malicious distribution of images against the will of the image's subject. The existing laws used to punish minor sexting as well as those laws newly created in response to its growing prevalence are classic examples of overcriminalization. The problem is the over the top responses to small scale instances of teen sexting and the writing of laws that target all sexting as if it is the most heinous version of the crime.
The first type of overreaction usually involves the use of existing child pornography distribution and possession laws to punish one-off instances of sexting. Prosecutors go after the subject of the image for distribution, the recipient for possession and in one recent case the assistant principal who discovered the image and retained a copy as evidence. Overzealous prosecutors push for maximum penalties, unsurprising given the subject matter, and rigid laws that were not designed for this type of behavior are applied. The result of which is disproportionate punishment in the form of branding teenagers as felons and sex offenders.
The second type of overreaction necessarily follows from the first. Feeling the political pressure to act and seeing that existing laws don't appropriately deal with these behaviors lawmakers enact overreaching and overbroad statutes to punish all forms of minor sexting as if they are worst offenses. Instead of measured and deliberate legislative action the public gets rush jobs that make even first time offenses felonies. Once again making sex offenders and felons out of teens that could well have been dealt with through diversion, fines and counseling.
None of this is to say that these issues are not of serious concern to the community or that they do not merit a legislative response. But as with all issues of overcriminalization careful attention must be paid to the breadth of the statutes enacted and the severity of the penalties that are mandated. A thoughtful and proportionate response is required in this case given the seriousness of the issue. The 'it's a problem, make it a crime' mentality simply won't cut it here.
Luckily for those teens who find themselves on the wrong side of these laws there are hopeful signs coming from the states. Several legislatures have revised their sexting laws, or are working on proposed legislation that reduce criminal penalties for first time offenders, or employ non-criminal punishments for less severe instances of sexting. However the overall trend is still towards passing more of these laws, and the majority are much further reaching than necessary.