Sexting is Not Only Stupid - It Can be Criminal

David Post, over at Volokh, is shocked, shocked! that a minor who films herself preforming a sexual act and sends it to others is distributing child pornography. Despite some of the interesting comments that followed the article, I don't think anyone who practices criminal law was terribly surprised by the ruling. On the legal merits, it's 100% correct. You just have to wonder why it was pursued.

For a long time, sexting among minors has been a nightmare for prosecutors. The scenario usually goes something like this: Mary, 14 years old, has found her true love, Bobby, 15 years old. Mary sends him all sorts of pictures of herself nude or semi-nude. Six months later she finds her next true love, Lawrence, and dumps Bobby. Bobby then spreads the pictures far and wide. The school gets involved (somehow the school always gets involved) and Mary's mother is on the warpath. She wants me to hold Bobby down while the investigating deputy drives a stake through the heart of the boy and then she wants him burnt alive and buried in ground that is specifically unhallowed and then she wants him dug up and sentenced to life plus cancer in prison.

As a prosecutor, you agree something should be done. However, spin it as you might, the boy's not the only party guilty of the distribution of child porn here. And, let me tell you, I'd rather be in a cage with an enraged gorilla than explain to another mother that if Bobby's guilty of felony distribution of child porn so is her darling baby girl. After all, those pictures didn't magically appear on his phone; they came from somewhere and they're pretty obviously selfies when the girl is taking a picture of herself in the bathroom mirror with the phone in hand. On top of which, tagging a young, stupid boy with a felony may be a little harsh in this situation, although something needs to happen to him.

The Virginia General Assembly helped with this quite a bit when it created a revenge porn misdemeanor in 2017: 18.2-386.2. Now, in the situation above the boy can be brought before the Juvenile Court on a misdemeanor that will disappear at 18. The court can handle it and Mary's mother will be somewhat mollified. On top of that, this is a much more proportionate handling of the situation.

It's not a perfect solution. Moms check their daughters' phones and find pics sent to a boy and go on a rampage demanding the boy be punished. Boys get pictures from girls and send them out to their buddies well before it could be characterized as "revenge." The only way to solve this problem entirely would be to make it illegal for anyone under eighteen to possess a cell phone. Or maybe legislators could write careful exceptions to the child porn statutes for those under eighteen (don't want to make 15-17 year olds child porn cutouts or forgive the 17 year old who solicited pics from 30 girls and published them all).