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“Sexting”: Do You Know Where Your Children Are? R U Aware?

By: Fort Lauderdale Criminal Lawyer Bradford M. Cohen, Esquire

High tech comes with a price…. In the age of more is more, it is difficult to spot a teen or young adult who is not fully equipped with a laptop, iPod, cell phone, etc.Just when you thought is was safe to permit your child and/or teen to carry a cellular telephone in case of an “emergency,” there is now a new worry among parents, teachers, guardians.It is called “sexting,” the increasingly popular practice of sex texting, which is defined by Fort Lauderdale Criminal Defense Lawyer Bradford Cohen, when an individual sends another racy or sexually explicit photos of themselves or someone else via cell phone texting, or engages in text messages that are sexually explicit in nature.

The danger of sex-texting and cell phone use is simple.Unlike a laptop or computer, which is more cumbersome and can be monitored by parents through the use of blocking, etc., sexting can take place in an instant via sending a text message and be deleted just as quickly. Cell phones are compact, can be used while a student is in class, if he/she is careful, or anywhere for that matter. Try to find a local restaurant where half of the population is not sitting with their cell phones affixed to their ear or “texting” or e-mailing.

The real trouble emerges when the “sextext” is forwarded to others by the push of a few keys. If the sextext contains a picture, that picture can be sent to any e-mail and/or cell phone of another and soon the image can appear on the internet via U-Tube or any other site such as “my-space,” “facebook,” etc.

Thus, it is no surprise that the legal field has been hit recently with the emergence of sexting vis-a-vie lawsuits, and teens and some adults, otherwise known as predators, are even facing criminal charges for such acts.While sexting may seem like “innocent” fun to minor children, technically it amounts to several very serious crimes that carry minimum mandatory prison sentences, as well as sex offender labels in most states.

New Briefs:For example, on April 1, 2009, it was reported that a formerVermonthigh school student already accused of sexually assaulting two classmates was charged with crimes related to child pornography on allegations he forced two other teenage girls to send him explicit photos and videos. The case is believed to the be the first of its kind inVermontand arises from sexting. By coincidence, the Vermont Senate has just passed a bill that would shield teens from prosecution under state child-pornography laws for voluntary sexting, but the measure leaves intact penalties for suspects who force or coerce others to participate, which often appears to be the case involving minor children. The student pleaded not guilty to two felony counts of promoting a sexual recording involving 15-year-old girls. The girls told police they agreed to send the graphic images and videos to the former student, but only after considerable pressuring from the older boy. Such conduct is illegal regardless of consent because it involves underage girls. The defendant faces a potential life sentence.State laws prohibiting the possession of child pornography also are applicable; those counts carry maximum penalties of two to five years in prison. The promotion charge, by contrast, brings a 10-year maximum.

Vermont’s Senate measure attempts to define the practice and catch up state law with emerging technologies and their use without condoning sexting.The bill exempts teens from prosecution for child pornography if the sender and the recipient of a sexting message are between 13 and 19 years old, and the exchange was voluntary.TheChittendenCountyState’s Attorney T.J. Donovan was quoted as saying that “[t]his is the intersection of adolescence, puberty and technology, . . .It’s a debate, and it’s something every state’s dealing with. I don’t see the public interest in labeling kids as sex offenders for sending graphic pictures of themselves to others as a means of courtship.”

January, 2009, an unusual legal case arose from sexting, resulting in six (6)Pennsylvaniahigh school students facing child pornography charges after three (3) teenage girls allegedly took nude or semi-nude photos of themselves and shared them with male classmates via their cell phones.The female students, all 14- or 15-years-old, face charges of manufacturing, disseminating or possessing child pornography while the boys, who are 16 and 17, face charges of possession.It was reported that authorities decided to file the child pornography charges to send a strong message to other minors who might consider sending such photos to friends. While this appears to be overkill, the letter of the law seems to have been violated, and because there is no mandatory minimum sentence under Pennsylvania’s child pornography law, unlike the federal statute, the students would not necessarily be incarcerated if they are found guilty, but convictions would have serious implications, including having to register as sexual offenders for at least 10 years. On March 31, 2009, a federal judge issued a temporary restraining order, finding that the girls (and their mothers) were likely to prevail in a civil rights lawsuit against Wyoming County District Attorney George Skumanick, and enjoining Skumanick from making good on his threat to file felony charges against the girls unless they agreed to participate in a five-week “educational” program. The minor girls were represented in the civil rights suit by their parents and the American Civil Liberties Union. Filing suit under a federal statute and alleging violation of their civil rights, the teens' ACLU attorneys offered three central claims. First, because the photos so obviously did not qualify as child porn under state law—and because it would be perverse in any event to consider the girls culpable for photographs circulated by others without their consent—Skumanick's threat amounted to retaliation for engaging in speech protected by the First Amendment. Second, the use of that frivolous threat to attempt to bully the teens into an education program—a threat that was effective in compelling the participation of the other boys and girls Skumanick targeted—encroached upon the constitutionally protected rights of parents to direct their children's upbringing. Finally, the requirement within that program that the girls write an essay explaining “what you did” and “why it was wrong" amounted to compelled speech, again a First Amendment violation.Final resolution of those claims will have to wait—an initial hearing is scheduled for June. But Judge James M. Munley ruled that the plaintiffs had a sufficiently good chance of succeeding in their suit and that he was prepared to take the rare step of issuing a temporary restraining order that preemptively blocks Skumanick from filing charges against them. "Plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts," Munley wrote. In any event, the judge noted, Skumanick "does not appear to feel immediate prosecution is necessary to protect the public from the crimes that the girls here allegedly committed." Indeed, while Skumanick has painted his restraint thus far as an act of generosity, it does bear asking: if he really believed that the teens were guilty of felony child pornography, wouldn't it be grossly inappropriate to let them off with the equivalent of a few hours' detention and a homework assignment?

On March 26, 2009, nine (9)West Allis,Wisconsinhigh school students faced suspension for their alleged involvement in an incident in which photos of nude students were sent by cell phone to other students. While no arrests were made in the incident, the parents of all of the students had been notified, and the students face suspension from school for their actions. The Superintendent of the West Allis-West Milwaukee School District said that the district was treating such incidents very seriously and were working closely with the Police Department to address the situation.He noted that there are strict expectations outlining cell phone usage and that the safety of the children is their first priority. The department and the district’s student service staff are exploring how to further educate the youth on the dangers of this type of texting behavior.

On February 26, 2009, aTennessee high school teacher was added to the state sex offender registry after pleading guilty to sending sexual messages to two female students. Jason Lancaster was suspended from his job atBlackmanHigh Schoolafter the girls said he sent text messages and contacted them through social networking Internet sites. Interestingly, Mr. Lancaster’s sextests came after one of the girls said sent the teacher a digital photo of herself. The teacher pleaded to 4 of 10 sexual offense counts against him last week to spare his family and the girls a trial. While the teacher does not face jail time, he can no longer teach at primary or secondary schools.

Technology has outpaced the legal system: With regard to uniform laws, aNew Yorklawyer and anOhiocouple, whose daughter committed suicide after a sexting incident, seek a federal law to set penalties for teens who send racy photographs via cell phones. Attorney Parry Aftab, joined by Albert and Cynthia Logan ofCincinnati, say there’s too much variance in how sexting cases are handled from state to state. Under presentOhioandPennsylvanialaw, a teen involved in sexting can be charged with a harsher felony offense. TheLogans’ 18-year-old daughter, Jessie Logan, hanged herself in her bedroom last year after cell-phone pictures that she sent to a boy were forwarded to many others in theCincinnatiarea. After the photographs were widely distributed, Jessie Logan was taunted by classmates and others. InPennsylvaniaand other states, authorities can file felony child-pornography charges against the teens. Aftab and others view pornography charges as too severe and intended for pedophile suspects. Consistency among the states is clearly needed.

The National Campaign to Prevent Teen and Unplanned Pregnancy reported that a survey of 1,280 teens and young adults found that 20 percent of the teens said they had sent or posted nude or semi nude photos or videos of themselves. That number was slightly higher for teenage girls — 22 percent — vs. boys — 18 percent.

Sexting is a serious social concern and while laws are in place to protect the public, not surprisingly, education is the key to teaching minor children of the dangers before they are branded with a negative label for the rest of their adult lives.

Parents, teachers, and community leaders can do their part:

  • Monitor your children’s cell phones and usage
  • Monitor and question any charges on your cell phone statement for “texting” if not within your cell phone plan
  • Cancel texting services if there is a concern that your child is improperly engaging in these activities
  • Disable texting and/or picture taking from your child’s cell phone
  • Educate children that while it may be “cool” at this stage to sextext, it is improper and can lead to real trouble
  • Enlighten your children as to the long term affects of taking and/or receiving sextexts and indecent pictures of themselves
  • Do not be afraid to seek help through school groups, religious organizations, etc.
  • Assist in educating children, teens, and young adults, by contacting your local government officials, state representatives, school board members, etc., and pushing for education in the classrooms

To stay safe online or when texting, advise your children to:

  • Save messages
  • Set to private, if you have an online profile
  • Do not add any “friends” you have never met face to face
  • Do not download anything from strangers
  • Do not forward messages to everyone in your “address book”
  • Think about the consequences of taking, sending, or forwarding a sexual picture of someone underage, even if that someone is you.You could be suspended from school, sporting teams, face humiliation, lose educational opportunities, and even face trouble with the law
  • Never take images of yourself that you would not want everyone--your classmates, your teachers, your family, or your employers--to see
  • Before hitting “send,” remember that you cannot control where this image may travel. What you send to a boyfriend or girlfriend could easily end up with their friends, and their friends, and their friends . . .
  • If you forward a sexual picture of someone underage, you are as responsible for this image as the original sender. You could face child pornography charges, go to jail, and have to register as a sex offender
  • Report any nude pictures you receive on your cell phone to an adult you trust. Do not delete the message. Get your parents or guardians, teachers, and school counselors involved immediately.

There aren’t many places where the use of cell phones is prohibited.In fact, it is commonplace for individuals to talk and/or text while on the toilet, in a restaurant, even during a movie.If your child/teen is one such offender, pay close attention to detail and become acquainted with the mechanics of your child’s cell phone and ask questions. You are, after all, the parent… and likely the one footing the bill…

** For more information on how you can protect yourself, your family and friends, contact Mr. Cohen at