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Thank you for viewing this Illinois Bar Journal article. One in five teenagers 1 has sent sexually suggestive, nude or semi-nude "sext" messages by phone or otherwise.
This article discusses the high-stakes legal issues raised by sexting and their implications for counsel to teens, parents, and schools. Sexting" is a word you have probably heard but might not be able to define.
For purposes of this article, "sexting" is the practice of sending nude or semi-nude pictures by cell phone or other electronic media; it is a sexual text 'sext' message. Sexting is a recent phenomenon, fueled by widespread availability of affordable mobile phones with picture-taking and sending capabilities.
It is increasingly common, especially among sexually curious, hormone-driven teenagers. On average, one in five teens have sent or posted nude or semi-nude pictures or videos of themselves. Among teens, sexting is ordinary and somewhat accepted, even though a majority of teens know sexting "can have serious negative consequences.
Adults risk embarrassment if their sext message is misdirected. But when a teenager meaning a minor between 13 and 17 creates, sends, or receives a sext message in Illinois, he or she may have committed the criminal offense of child pornog raphy. Nonetheless, they subject sexting teens to a myriad of felony charges and branding as a "sex offender. A teenager's ability to snap a picture and send it in seconds without reflection gives Needing sex Illinois to new legal issues for society and the legal community.
Teen sexting confronts attorneys and courts with new and complicated legal issues. Moreover, a sexting teen's social and legal problems often converge at the schoolhouse door. For attorneys who counsel educational institutions, it is only a matter of time before they must grapple with sexting-related issues. These issues pose difficult challenges for school administrators and staff, especially where improper investigation can subject school personnel to prosecution for the same criminal offenses that teens risk by sexting.
By being aware of the relevant law and having policies in place to deal with sexting, prosecutors and law enforcement, school districts, parents, and teenagers themselves can curb sexting behavior while avoiding liability. Sexting can have serious social and emotional consequences for teens and adults alike - especially where a picture is taken without knowledge, forwarded without consent, or used to bully and harass.
Further, the embarrassment of uncontrolled dissemination of personal and private pictures can ificantly disrupt the teen's life. For example, after Needing sex Illinois of people were sent sext messages a teen had sent only to her boyfriend, she was cruelly harassed through MySpace and Facebook, leading her to hang herself.
Child pornography. Most alarmingly, a sexting minor, or a recipient of a sext message from a minor, may have committed one or more felonies under the Illinois Child Pornography Act the "Act". In Illinois, a person commits the offense of child pornography by videotaping or photographing anyone he or she should know is under the age of 18 and who is engaged in any sexual act or in any pose involving lewd exhibition of unclothed or transparently clothed genitals, pubic area, buttocks, or female breast.
Soliciting or enticing someone one should know is under the age of 18 to appear in such a picture or videotape is also pornography offense. Forwarding a sext message to others may also constitute the offense of child pornography. A person who, knowing its content or nature, possesses a photograph or film depicting someone he or she should know is under 18 has also violated the Act. While the statute does not define "sufficient time," sooner is better than later. Finding and Needing sex Illinois an unsolicited sext message an hour after its receipt better demonstrates involuntary possession than does carrying a sext message on the phone for two months or more.
The Act dictates that cell phones used for sexting by minors must be seized and forfeitedallowing "law enforcement or prosecuting officers" to possess offending materials as part of the "performance of [their] official duties. Further, minors who sext across state lines by using the Internet, for exampleor by using materials that traveled in interstate commerce, are also subject to federal charges of child pornography. Sex offender registry. In Illinois, someone who commits the offense of child pornography is a "sex offender" and must register and report as such.
Beyond registering and reporting as sex offenders, students convicted of child pornography may Needing sex Illinois be bound by other restrictions that can ificantly complicate their lives. For example, child sex offenders 17 and older cannot be present on school grounds or loiter or reside within feet of the school building. The following example places the foregoing offenses in perspective: a year-old girl who snaps a sexual, semi-nude picture of herself to send as a phone message to her boyfriend has committed at least three felonies by creating, disseminating, and possessing "child pornography.
Thus, one unwise youthful indiscretion in five felonies and subjects the teenage couple to Needing sex Illinois as "sex offenders. A legislative response. Some states have attempted to decriminalize sexting among teens, or at least reduce the offense from felony to misdemeanor. As this article went to press, the Illinois Senate had just passed SB38 which would transform most sexting between teens from a felony to a noncrime by treating the teen in question as a nondelinquent minor in need of supervision under the Juvenile Court Act. Enacting this bill or one like it into law would be a huge step in the right direction.
Cell phones have become ubiquitous among students, but the law has been slow to catch up. Illinois legislators should continue to examine incidents of sexting and how the current law applies to them. Legislators should consider drafting a narrow exception to sex offenses to prevent "innocent" teens from being charged with serious violations while maintaining liability for those who are guilty of actual child pornography - regardless of age.
Until then, parents and schools may be better equipped to discipline and admonish sexting teens than are police and prosecutors. Because of their age, a vast majority of sexting teenagers attend school. Thus, even if the likelihood that sexting teens will be charged with a felony is remote, school districts cannot ignore the disruptive and potentially tragic consequences of sexting among their students.
School districts should work with local law enforcement in establishing district policies and procedures for investigating allegations of sexting. They should discuss whether and how, if at all, law enforcement will be involved in sexting issues. Because determining what constitutes criminal "child pornography" can be difficult even for those in law enforcement, Dave Haslett, Chief of the Illinois Attorney General's High Tech Crimes Bureau, suggests that schools involve law enforcement early to avoid missteps.
Based on this dialogue with law enforcement, the school district should revise its policy and procedure accordingly. No cell phones. Naturally, prohibiting student use of cell phones during the school day can greatly reduce sexting issues at school.
Because students may still use computers to send, request, or view offending material, school districts should also consider a broader policy prohibiting the creation, possession, or dissemination of ob-scene or profane materials by students, regardless of the device s used. Confirm violation of school policy. A school should confirm whether a student alleged to have sexted actually violated school policy.
Establishing improper conduct will be easier where the district has explicitly defined inappropriate behavior with regard to sexting in its prohibited conduct policy. Take the cell phone. According to attorney Daniel Spillman of the Illinois Attorney General's High Tech Crimes Bureau, possession of a sext message that is child pornography is no different than possessing a "kilo of cocaine.
Beyond reducing school district exposure, confiscating the device containing the sext message will prevent further dissemination, further harm to Needing sex Illinois victims, and allow for an investigation of other students that may have Needing sex Illinois involved or harmed. Involving law enforcement early will also minimize any potential criminal liability of school personnel.
Report incident to victim. The student pictured in a sext message may be unaware of his or her victimization. Schools should consider when and how they should inform such a student, giving thought to the sensitive nature of the subject and the student's right to privacy. Schools may also consider coordinating this task with local law enforcement and guidance counselors. Discipline the student s. Administrators should establish a uniform method for disciplining students involved in sexting. When disciplining sexting students, school personnel should consider the facts of the situation and review district policies related to sexual harassment, bullying, indecent or profane materials, use of electronic devices, and failures to abide by student handbook guidelines.
Educate teens and their families. The school district should educate students and parents about sexting and school policies related to the behavior. Families should discuss the legal and moral issues surrounding sexting. Parents should frequently review their child's social media, e. Teens possessing such messages involuntarily have a defense. Lawyers counseling a minor accused of sexting and violating child pornography laws should also consider the minor's role in the creation, dissemination, or possession of the offending material to appreciate potential exposure to other criminal charges.
Lawyers should also explore whether a teen's actions give rise to civil liability for claims such as invasion of privacy or defamation. Finally, although child pornography laws generally regard minors as the victim, prosecuting sexting teens for a strict-liability child pornography offense may be punishing them for their age rather than the con tent of a sext.
Thus, lawyers should also consider whether the content of a sext message constitutes child pornography or is protected speech under the First Amendment. On average, one in every five teens at a school near you is sexting. Thus, prosecutors and attorneys for these sexting teens, their parents, and their school districts should be prepared to educate and advise their clients about the social and legal ramifications of sexting.
See Annalisa Barbieri, You don't know what sexting is? See Risa V. See Sean D. See Miller v SkumanickF Supp 2d MDPA granting temporary restraining order preventing prosecutor from filing child pornography charges against teens alleged to have sexted. Bland, 'Sexting' consequencesArizona Republic Aug 27, cited in note 6 "Lawmakers in Vermont, Utah and Ohio are making sexting a misdemeanor instead of a felony when the cases involve teenagers, and as long as the sender voluntarily transmitted the image.
Another slightly more punitive sexting bill, HBwas still alive at presstime. to post comments. Criminal Law. By Joshua D. The crime of sexting Sexting can have serious social and emotional consequences for teens and adults alike - especially where a picture is taken without knowledge, forwarded without consent, or used to bully and harass.Needing sex Illinois
email: [email protected] - phone:(141) 109-3790 x 1139
Sexting: It’s No Joke, It’s a Crime