How to fix "sexting" laws

A New Jersey bill is a good start -- but we should do more to defend teens' sexual exploration

By Tracy Clark-Flory
Published March 15, 2011 9:28PM (EDT)
On Passover, matzoh and mobile phones don't mix (Damir Cudic)
On Passover, matzoh and mobile phones don't mix (Damir Cudic)

I just recently performed an archaeological dig on my childhood closet, which has been perfectly preserved in the state it was in when I flew the nest. Amid all the empty bottles of Smirnoff Ice and aimlessly doodled-on binders, I found a stockpile of what might be referred to in court as "child pornography" -- but it was self-made with my high school boyfriend. The first thought I had when I saw the images -- black-and-white printouts from a webcam -- was how sweet the shots were, despite being mildly explicit. Here were two teenagers safely and lovingly exploring their bodies and sexualities -- and because the images were kept strictly for our eyes only, they maintained that innocence.

That's why I'm encouraged by news that late yesterday New Jersey approved a bill that would allow teenagers caught "sexting" to avoid being prosecuted as child pornographers. The bill is based on the wacky notion that teens shouldn't be labeled as sex offenders for the rest of their lives for taking dirty self-portraits, or possessing X-rated photos of their sweetheart who, in many cases, they are legally allowed to have sex with. (Although, that was not the case for me, as the age of consent in California is 18. Whoops.) This measure is a great step toward a saner adult attitude toward teen sexuality, and other states should look to it as a blueprint. But there's also room for improvement.

The bill gives teens the option of paying for an educational program as a way to avoid a damaging criminal record. Assemblyman Jon Bramnick told NBC that the measure "sends a clear signal to the Judiciary that when young people make a mistake, this Legislature is saying, 'give them a chance, give them an option other than a criminal past.'" He's absolutely right -- it is absurd for "sexting" to land a teen on the sex offender registry -- but Bramnick, and the measure itself, would be more right if they allowed that sometimes it isn't a mistake or wrong when teenagers take sexy self-snapshots, that it can be part of normal sexual development.

Now, to be clear, I don't think it's a good idea for teenagers to distribute naked photos of themselves. More often than not it's a bad idea to digitally share naked pics, even with a committed lover, and we should communicate that to teens. (We should also be educating kids, and adults, about the profound potential for embarrassment and professional consequences in digitally sharing even personal images that are not pornographic.) If we were really concerned with the well-being and personal rights of teenagers, though, we would create a legislative safe space for sexual exploration.

Clearly, the major concern is that by allowing teens to even take or possess naked self-portraits, we would be sanctioning the production of child pornography. It's true that once an image is digitalized its reach can be enormous -- whether it's on a hackable computer or spread through a chain of text messages. But we should find a way to both protect teens against exploitation and allow them a reasonable degree of sexual autonomy. Save the prosecutions and the example-making for those who disseminate pornographic images of minors other than themselves (and that would include, say, the girlfriend who texts an image of her ex-boyfriend's penis to the entire school in an act of retaliation). There certainly are no easy black-and-white answers here, especially when it comes to the blunt instrument of the law, but we should keep striving for smarter legislation -- and the New Jersey bill is a start.

As for my recent discovery in my childhood closet? I threw all the photos away, impulsively and in a moment of fear. I mean, child pornography, eek! A big part of me regrets it, though. I don't see any good reason why it should be illegal for me to possess those images. And it would have been nice to dig the photos out of a safe hiding place when I have high school kids of my own and to remember what it was like to be a lusty teenager in love.

Tracy Clark-Flory

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Children Love And Sex Parenting Sex Sexting Teenagers