Legal Periodical: Sensible Legal Approaches to Teenagers’ Exchange of Self-Produced Pornography
Stemming Sexting: Sensible Legal Approaches to Teenagers’ Exchange of Self-Produced Pornography
Elizabeth C. Eraker, 25 Berkeley Tech. L.J. 555 (2010)
The term sexting often describes a broad range of behaviors that differ radically in terms of the actors, motivations, and tactics involved. In this Note, the term ‘sexting’ refers to the self-production and distribution by cell phone of sexually explicit images in the course of consensual, voluntary activity by teenagers. This definition describes a phenomenon differing from the use of texting by sexual predators to exploit youth, a set of issues that is not addressed here, and the use of sexting to cyberbully. This Note focuses primarily on the typical sexting case involving the limited exchange of provocative messages concerning consensual sexual activity between willing participants.
The prevalence of sexting and the severity of its consequences have prompted state and federal policymakers to consider various legislative proposals, from crafting new criminal offenses to introducing educational programs. In exploring appropriate legal responses to sexting, this Note attempts to strike a balance between competing policy objectives, such as teenage privacy and the state’s interest in preventing child sexual abuse and child pornography, while respecting the extent to which the digital revolution changed how teenagers communicate and interact in social spaces. While society may want to minimize teenagers’ production and distribution of provocative images even under consensual and private circumstances, sexting should be exempt from treatment under child pornography statutes. In Part I, this Note explores the sexting phenomenon and its underlying causes in the context of a digital generation of teenagers. Part II surveys the varied responses of authorities to sexting incidents, including prosecutors and state legislators. Part III discusses the range of policy issues implicated in designing an appropriate legal framework to address sexting. Part IV concludes by suggesting several legislative components that could help authorities discipline the harms of sexting without resorting to ill-suited child pornography statutes.