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The Washington Post and ABC News (video) are reporting that two North Carolina teens have been charged with manufacturing and possession of child pornography because they have naked pictures of each other on their phones. The teens are now 17 (they were 16 at the time) and they are old enough to be charged as adults. Had they been 18 it would not have been considered child porn and no charges would have been filed. Sixteen is also the age at which kids can have sex in North Carolina. As Dan Abrams said on ABC’s Good Morning America, they could look at each other naked but they can’t share pictures of each other in that state.

Because they are being charged as adults, some media outlets are disclosing their names. I’m not.

Laws designed to protect, not prosecute, children

Child pornography laws were designed to protect children from predatory adults. They were never intended to prosecute teens for sharing images of themselves. This is a disgraceful use of prosecutorial powers. There are situations when it is appropriate to prosecute around sexting images but these are cases where they are distributed without the subject’s consent or cases where an adult has solicited images of children. So-called sextortion is a serious offense when someone uses a nude or sexually explicit image of another person to extract money, sex or something else from a victim. But two teens voluntarily sharing images of themselves — regardless whether it was a wise decision — should not be a crime.

In 2011 Janis Wolak and David Finkelhor of the Crimes Against Children Research Center at the University of New Hampshire published a Sexting Typology that broadly divided sexting into two categories: ‘Aggravated’ and ‘Experimental’. “Aggravated incidents involved criminal or abusive elements beyond the creation, sending or possession of youth‐produced sexual images,” wrote the researchers. These include adult involvement, criminal or abusive behavior by minors such as sexual abuse, extortion, threats; malicious conduct arising from interpersonal conflicts; or “creation or sending or showing of images without the knowledge or against the will of a minor who was pictured.” Experimental incidents occur when youth take images of themselves “to send to established boy‐ or girlfriends, to create romantic interest in other youth, or for reasons such as attention‐seeking,” with no criminal intent.

Still, teens and parents need to know about the possible implications of sexting which is why ConnectSafely has published the following set of tips:

Tips for Dealing with Teen Sexting from ConnectSafely.org

“Sexting” usually refers to the sharing of nude or semi-nude and sexually provocative photos via mobile phones, but it can happen on other devices and the Web too. First of all, research shows most teens don’t “sext.” And most of those who do experience no negative consequences. But for teens who do sext, there are both psychological and legal risks, especially if coercion is involved and the images wind up being distributed beyond their intended audience. Sexting is certainly not just a teen issue, but these tips are specifically for teens and parents of teens. Scroll down for tips for both parents and teens.

Various causes: The reasons teens “sext” vary widely. In some cases it’s a form of flirting or a way of showing affection for a boyfriend or girlfriend or someone the teen is interested in dating. Sometimes it’s impulsive behavior, perhaps at a party or when under the influence of drugs or alcohol. There are also cases where the teen is responding to peer pressure, bullying or even threats. In rarer cases, adults solicit images from teens. Some teens view sexting as a form of “safe sex” because, unlike physical sex, there is no risk of pregnancy or sexually transmitted diseases.

Possible consequences: The consequences of sexting can range from nothing at all to extremely serious. In most cases, nothing bad happens because the image is never shared beyond the person it was sent to. That doesn’t mean there’s no risk, because there is always the possibility the image will be shared later, e.g., after a breakup or seen by someone else who has access to the phone or even accessed and distributed as the result of a hack. And as you know, digital photos are easy to copy and paste onto the Web, where they can be archived and searchable pretty much forever.

Severe consequences: In cases where the images have been seen by others beyond the intended person, the consequences can be quite severe in terms of possible criminal prosecution, trouble with school authorities or serious social and psychological consequences including increased bullying, social isolation, shaming and severe anxiety, fear and depression. Experts caution never to assume that any single incident or event is the cause of a suicide, but there have been a few tragic cases where teens have killed themselves after nude images have been widely distributed.

It’s illegal. For maximum safety and peace of mind, don’t share nude or sexually suggestive photos of yourself or anyone else, especially if under 18. Though increasingly rare, there have been cases of teens being charged with producing and distributing child pornography, charges that, in a very small number of cases, have resulted in criminal prosecution and being put on a sex offender list. The owner of a phone or computer with nude photos of anyone under 18 stored on it could be charged with possession. If the photos go to someone in another state (which can happen really easily), there could be federal felony charges.

Parents, talk with your kids about sexting in a relaxed setting. Ask them what they know about it. Express how you feel in a conversational, non-confrontational way. For one thing, help them think about what it might feel like to have intimate photos of themselves forwarded to any number of peers by someone they thought they liked or trusted. A two-way dialog can go a long way toward helping your kids understand how to minimize legal, social and reputation risks. If they want to avoid the conversation, that’s OK, have it anyway. Just don’t expect it to last very long and be respectful of how they respond.

The bottom line for everybody: Stay alert when using digital media. Critical thinking about what we upload as well as download is solid prevention, and prevention in this case is the best protection by far.

We’re not in a position to provide legal advice, but we can tell you that laws vary from state to state, each jurisdiction enforces the law differently, and the applicable “child pornography” laws that are sometimes applied were written before sexting was “invented.” With sexting, the same minor can be both perpetrator and victim when producing and sending photos of him or herself – a very tricky situation under current laws.

Parents:

• If your children have received any nude pictures on their phones, have them delete the photos. Your family doesn’t want to run the risk of having what could be deemed “child pornography” on any of its devices.
• The next most important thing is to have the calm, supportive conversation we mention above, if you haven’t already, and learn as much as you can about the situation – for example, if they forwarded any images and why and what they think about the motives behind the incident. Talk about the possible psychological and legal impacts.
• Consider talking with other teens and parents involved, and possibly your child’s school, based on what you’ve learned, but keep your child informed and involved. Every case is unique and contextual, but if your child’s involved, so is his or her social life and emotional wellbeing.
• Consider very carefully whether or not to involve the school. Some schools have mandatory reporting requirements, which could mean that any case they hear about has to go to law enforcement, which could turn an already hard lesson into long-term pain.
• Consider seeking help from a therapist or counselor if a sexting incident causes you to be concerned about the mental health of your child or is causing stress, anxiety or depression for the child or family members or other people in the child’s life.
• Some experts advise that you report the photo to your local police, but consider that, while intending to protect your child, you could incriminate another and possibly your own child. In some states, teachers and other school staff are required by law to report sexting photos to law enforcement. That’s why it’s usually good to talk to the kids and their parents first. If malice or criminal intent or an adult is involved, you may want to get some legal advice. Just be aware of the possibility, however unlikely, that child-pornography charges could be filed against anyone involved.

Teens:

• The safest way to avoid a picture getting into the wrong hands is to never take it or share it. Sadly, there are cases (sometimes called “revenge porn”) where someone shares pictures meant only for them — sometimes after a breakup.
• Never take and send an image of yourself under pressure, even from someone you care about.
• If a stranger asks you to take a revealing picture, it could be a scam that could lead to further demands and threats (“sextortion”). Do not respond and consider reporting it to the police, your parents and the CyberTipLine (800) 843-5678). It could be a criminal who has exploited other people so you’re helping others by alerting authorities.
• If a sexting photo arrives on your phone, first, do not send it to anyone else (that’s not only a violation of trust, but could be considered distribution of child pornography). Delete the photo(s). If it would help – especially if you’re being victimized – talk with a parent or trusted adult. Tell them the full story so they can figure out how to support you. Ask them to keep you involved.
• If the picture is from a friend or someone you know, then someone needs to talk to that friend so he or she is aware of possible harmful consequences. You’re actually doing the friend a big favor because of the serious trouble that can happen if the police get involved. Get the friend to delete the photo(s).
• If the photos keep coming, you and a parent might have to speak with your friend’s parents, an attorney, or school authorities.

© 2015 ConnectSafely.org