Wherever smartphones and sex hormones coexist, there will be sexting. To stop it, you would have to confiscate every camera in the country, dismantle all cell towers, and shut down the Internet.
But in Cañon City, Colorado, teenagers are now frightened of being slapped with child pornography charges for exchanging nude pictures of themselves and their classmates. It’s an outdated legal approach to an inevitable facet of teenage life in a digital age, and a draconian response to a situation that requires more inventive legal solutions.
As The Denver Post reports, hundreds of students at Cañon City High are currently under investigation for taking, possessing, or sharing nude photographs of themselves or a classmate. Police are now poring through hundreds of sexted pics and Fremont County District Attorney Tom LeDoux has acknowledged the possibility that “students will have to register as sex offenders” in some cases.
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“It doesn’t matter if it was consensual,” LeDoux told The Post. “There is no distinction according to Colorado state statutes. The district attorney’s office will make distinctions as we see fit.”
The sexting scandal has sent the small Colorado community into a panic. Every detective and patrol officer at the Cañon City PD will participate in the investigation for the next month, police told The Post, and investigators will be especially interested in uncovering any cases of coercion, bullying, or sharing photos with people other than the intended recipients. In cases that the police wish to prosecute, offenders will be sent to juvenile court.
Adding to the uproar, last week’s high school football game was cancelled based on principal Bret Meuli’s fears that many members of the school’s team were involved in sexting. Meuli told The Denver Post that a large percentage of his 1,000 students are children of correctional officers. Many of them are afraid, he says, and are now deleting their photos. Some students have even been suspended and the school’s superintendent is urging parents to “[let their children] know what they did was wrong.”
In short, the situation is a mess, and one that could have been avoided with smart legal reform.
Cañon City High School students are right to be afraid of the consequences of a sex offender designation. Even though the DA has tried to calm the community by telling local reporters that he will only push for registration if it’s necessary, he has still put it on the table. And, technically, he’s right: Colorado’s sexual offense statutes do not allow sexting between consenting minors.
But maybe it’s time to change how we classify this increasingly common teenage behavior and how we prosecute it, before more teens are caught up in criminal investigations for something that one in four of them already do. Given the pervasiveness of sexting and its seeming inevitability, the current legislation around the practice is downright archaic.
In what clinical psychologist and blogger Dr. David Ley has called “a wild, Orwellian Catch-22,” the age of consent in many states is below the age at which teens can legally possess a nude photograph of themselves or a classmate. In other words, teens in some states can be old enough to see each other naked—and have sex—in person but not old enough to see each other naked on the screens of their phones. That’s because most states still do not have specific legislation to handle sexting cases, which often means that child pornography and sexual offense statutes apply to sexting cases.
Colorado, ironically, is an extreme example of the discrepancy Ley pointed out. In Colorado, teens below the age of 15 can legally consent to have sex with someone up to four years older than them. Fifteen and 16-year-olds can consent to sex with someone up to ten years older than them. At 17, the official age of consent, there are no more age limitations. As far as consent laws go, these are quite permissive.
But any Coloradan under 18 is technically participating in the “sexual exploitation of a child” if they possess a nude photo of themselves or another minor. To be clear, a 16-year-old in Colorado can legally consent to sex with a 26-year-old but a 17-year-old cannot send a nude photo to another 17-year old. Under Colorado state law, nude photographs of someone under 18 are classified as “sexually exploitative material” and anyone who “possesses or controls any sexually exploitative material for any purpose” can be charged with a felony offense.
It’s a law that’s great for cracking down on child pornography—which is, after all, what it was designed for—but it’s horrible for the large percentage of high schoolers who send each other naked photos.
Other states have updated their legislation to try to account for the differences between sexting cases and full-on child pornography felonies. Take Utah, Colorado’s neighbor to the west, for example. In 2009, the Beehive State made sexting a misdemeanor rather than a felony, sparing sexting kids a permanent scarlet letter. Several other states have followed suit. According to the Cyberbullying Research Center, 11 states treat sexting as a misdemeanor as of July 2015.
But as sexting becomes more culturally salient and the misdemeanor referrals pile up, not even this toned-down approach may be able to hold water for long.
The ACLU has historically advocated against punishing sexting as misdemeanor, with one Ohio regional director arguing that “bumping the punishment down to a misdemeanor does little to address the problem and prevent sexting.”
What, then, could prevent panics like the current Cañon City crisis while still leaving potential victims with modes of legal redress?
Florida punishes first sexting offenses for minors with community service, a small fine, and/or a training class. Nebraska allows minors who receive consensually shared sexually explicit images of teenagers over fifteen to dodge charges, but sending a sext is still a criminal offense for a minor. Other states have enacted fines, community service, and education programs but, of the 30 or so states that have not passed specific legislation, child pornography is too often the go-to charge.
But half a decade into America’s sexting panic, it’s clear that no law, however harsh or lenient, can stop teens from sending each other nude photos. And so far, no state has figured out how to respect boundaries of consent while still penalizing teens who maliciously distribute sexts, or coerce others into taking them. For now, one thing is clear: In 2015, sending an entire community into a panic with the threat of “sex offender” status is no longer a viable solution. It never was.
