Pennsylvania Considering Bill to Decrease Penalties for Teen Sexting

Current State Law Treats Sexting as Felony

In March, the Pennsylvania House Judiciary Committee approved a bill that would make teen sexting a second degree misdemeanor. Under proposed House Bill 2189, 13- to 17-year-old kids who electronically send, receive or who are found in possession of sexually explicit images of themselves or others could be charged not with a felony but with the lesser criminal offense.

The lesser charge would not be available for text messages that depicted sexual intercourse, deviate sexual intercourse, penetration, masturbation, sadism or masochism. In these cases, the teens still could face felony prosecution for more serious child pornography charges under Pennsylvania's sexual abuse of children statute.

Currently, felony child pornography charges are the only available charges that Pennsylvania prosecutors may bring against teens who participate in sexting. These charges carry serious consequences, including up to seven years of imprisonment, fines and registration as a sex offender. More than that, a conviction for a felony child pornography charge can follow teens well into their adult lives and limit employment and educational opportunities, including making them ineligible for military service and certain student loans and grants.

HB 2189 is supposed to close the loophole in state law and provide a more appropriate means to prosecute sexting. In addition to charging teens with the lesser misdemeanor offense (which does not carry a jail sentence), the teens also would be eligible for diversionary programs and would have an easier time expunging the conviction from their permanent records. The bill is currently being reviewed by the appropriations committee.

Opponents Urge Education over Punishment

Opponents of the bill, like the American Civil Liberties Union (ACLU), argue that teen sexting should not be criminalized at all. They argue that nothing in the bill will prevent state prosecutors from bringing child pornography charges against those found in possession of the pictures as well as the teens who are depicted in the images - who may be victims rather than willing participants of the act.

Opponents also argue that the state should be focusing its efforts on preventing sexting rather than punishing it. Since teens often fail to consider the long-term consequences of their actions, criminalizing the behavior will not deter them. Instead, opponents argue, the state should devote resources to developing and implementing education programs to teach teens about the dangers of sexting and the potential impact it can have on their futures.

Finding the best way to treat teen sexting is a problem other states besides Pennsylvania are struggling with. In many states, the only available legal means to punish the behavior is by charging the crime under harsh state child pornography distribution and possession laws.

Other states, including Utah, Vermont and Nebraska, have passed statutes similar to the one being considered in Pennsylvania and have decided to punish the behavior as a lesser misdemeanor or other minor offense. Rhode Island also is considering similar legislation this term, but its law would punish sexting as a status offense and focus on intervention and counseling programs instead of criminal punishment.

Education Programs in Light of Miller v. Mitchell

Whether Pennsylvania will use education and other intervention programs and the type of content these programs will include may be affected by the upcoming ruling in Miller v. Mitchell.

In Miller, school officials in Tunkhannock, Pennsylvania, discovered several students possessed nude and semi-nude photos of female students on their phones. The phones were confiscated and turned over to the local prosecutor. The prosecutor then sent letters to the families of the students who were in possession of the pictures as well as the girls who were depicted in the images. The letters informed the parents that their children could be subject to criminal prosecution for child pornography charges if they did not participate in a voluntary education program.

All three families of the girls refused to participate in the program and then took legal action to prevent the prosecutor from filing felony charges against their children. In response, the district court ordered a temporary injunction against the charges, pending the final outcome of the case. The temporary injunction was upheld by the Third Circuit Court of Appeals, marking the first time a federal appellate court had issued a ruling in a sexting case.

The girls' parents argue that the charges amount to retaliation for refusing to participate in the education program - a program designed and made mandatory by an attorney and not an educator. Further, they argue that several of their constitutional rights have been violated, including their right to direct the upbringing of their children as well as their children's rights to be free of compelled speech.

While this is a very complex case, the final ruling by the district court could have important implications for the type of sexting education programs that could be taught in the public school system.

Conclusion

If your child faces criminal prosecution for sexting, it is important to begin working with an experienced criminal defense attorney as soon as possible. These charges are serious and a conviction will follow your child well into his or her adult life. For more information on defending against sex offenses, child pornography and other criminal charges, contact a knowledgeable criminal defense attorney today.