Teenagers are expected to occasionally make poor choices, but when their decisions lead to criminal offenses with potentially lifelong consequences, balancing education and punishment becomes the challenge.
Sexting, the act of sending explicit photos or messages by phone, and posting nude or semi-nude photos online, has become more prevalent among teens across the nation. As a result some of them are facing charges.
Locally, a 16-year-old James City girl who police say posted nude photos of herself on Twitter is expected to participate in an informal judicial process. It will allow her to avoid a felony charge of possession, reproduction, distribution, solicitation, and facilitation of child pornography, according to Maj. Stephen Rubino with James City County Police.
Commonwealth's Attorney Nate Green said when he heard about the incident and the charge, he was concerned. There is a stigma with a child pornography charge, he noted, and that's not easily erased even if the case never makes it to a courtroom.
"It's not our intention, and it's never been our plan, to charge juveniles with that type of felony, especially when the code allows for a much more incremental step to address the problem," Green said.
Publicity over the local case erupted. Beyond local media the story has shown up on Huffington Post, Smoking Gun, The Drudge Report and Gawker. Rubino said Tuesday he had a phone message from the British Broadcasting Corporation.
A 2009 sexting case in Greensburg, Pa., also drew wide coverage. Six teens faced child pornography charges after photos were discovered on a cell phone seized by staff at one of the schools the teens attended. According to NBC News, three girls are accused of sending nude or partially nude photos of themselves to three boys via cell phones. CBS News reported that all but one boy accepted a lesser misdemeanor charge.
Last year, the ACLU of Pennsylvania announced it might sue over sexting charges filed against two middle school students, also in Greensburg. A 13-year-old girl reportedly sent a topless photo to a 14-year-old boy. In a report on TribLive.com, an ACLU representative argued that the girl's actions of creating a photo are protected under the Constitution and noted the boy did not distribute the photo. It's unclear if the suit was filed.
Stephanie Williams-Ortery with James City Police said the 16-year-old girl here admitted to sending the photos she posted to young men. Statistics from national studies collected on GuardChild.com indicate that 20 percent of teens have sent or posted nude or partially nude photos, and 51 percent of teen girls admitted pressure from a boy was the reason they sent a sexual message or photo.
Crime or not?
Maj. Greg Riley with Williamsburg Police said he sees the validity in looking at the 16-year-old girl's actions as a crime. He said the danger lies in the potential for the image she sent out to be widely published and possessed.
"If she kept those in her house and no one ever looked at them, then we have no problem," he said. "When she posts them on the Internet she creates other criminals."
Adam Gershowitz, a professor at the William and Mary Law School, said sexting and similar issues are an increasing problem in the United States. He noted that child pornography cases used to involve "the creepy old guy and some really terrible photographs," but that's not always the case now.
Broadly written laws are to blame, according to Gershowitz.
"There's lots of behavior that people engage in that fits within a terrible crime, but prosecutors realize that's not really what the legislature intended to capture with that law."
In Gershowitz's opinion, the answer is prosecutorial discretion. He said the 16-year-old girl and others in similar situations could be charged with lesser offenses. He added that prosecutors don't have to charge them at all.
Green said there are opportunities under the Code of Virginia to charge the 16-year-old girl with a misdemeanor instead of a felony. He noted that the Commonwealth Attorney's Office was not consulted on the case.
Rubino said in the James City case, in lieu of going through the court system the girl is being asked to take a law-related education class that covers sexting. If she doesn't participate, Rubino cautioned that the felony charge could go forward.