In Washington, teen sexting is a felony — but that could change
Lawmakers are reconsidering a law that charges teens who swap nude selfies as harshly as adults who deal in child pornography.
Before she was old enough to go to an R-rated movie by herself, Nicole was facing charges that put her in the company of some of society's most despised criminals. She had been arrested at the age of 15 and labeled a child pornographer. The reason: Photos that were sent to her, but that she swears she never even saw.
The saga started when another student at Nicole's Central Washington high school stole an iPod Touch from a classmate’s locker, Nicole's mother says. The device contained partially nude photos of its owner — another teenage girl — who had taken the selfies to send to her boyfriend, according to police documents.
The photos would eventually show up in two places. According to court documents, hard copies were mailed to the parents of the girl who owned the iPod and digital versions were sent to Nicole's email account.
Nicole insisted she never opened the images or shared them, but it didn't matter. She was charged and convicted of distributing and possessing child pornography — felonies that come with a requirement to register as a sex offender.
Both of Nicole's child pornography convictions were later vacated by a state appeals court and ultimately dismissed, case records show. Even so, Nicole's mother says fighting the charges was “a nightmare” — one that lasted more than three years and cost her family at least $60,000 in attorneys fees. She says her daughter, once a strong student, fell into a depression. Nicole's grades dropped, and she was kicked off her softball team, her mother says.
“She went down to ground zero,” Nicole's mother says. “There was just nothing left of her.”
Crosscut is choosing not to name Nicole or her mother to protect the girl’s identity, as Nicole was a minor at the time of the incident and shares her mother’s last name.
Nicole's mother, who runs her own business, says she also lost clients amid the gossip, and had to move to a different town to keep her business afloat.
She says her family’s ordeal illustrates why Washington state needs to reconsider how it punishes teenagers who exchange intimate images via text and email.
Under the current statute, teens who exchange nude photos of themselves — even if they are sending them to an intimate partner — can be charged as severely as adults distributing child pornography. Similarly, teenagers who receive nude photos of another teen could be charged with possessing child pornography, even if they never sought copies of the images.
Nicole was initially convicted of dealing in depictions of a minor engaged in sexually explicit conduct, as well as possessing the explicit photos. If those convictions had not been vacated by the appeals court, she would have had to put her name on the state's sex offender registry.
A felony sex offense on a person's record can limit their ability to access housing and job opportunities, as well as attend college or university.
“We were just in disbelief,” Nicole's mother says of watching her daughter get convicted under the law. “I thought the judge would see there was just no way this child could be labeled a pornographer.”
A coalition of state lawmakers are concerned as well, claiming state law has not kept up with advances in cellphone technology or knowledge of teen brain development. They’re proposing to change the law to differentiate between teenagers and adults when it comes to the penalties for possessing and sending nude photos of minors.
The statute dates back to 1984. It has been updated several times since, but those updates have not addressed the concerns that are the focus of the current bill.
“When the law was written, our predecessors just could not have contemplated that every teenager would have a minicomputer in their hand with a video camera connected to the internet," says state Rep. Noel Frame, D-Seattle. "The law was intended for people who seek to do harm against children, but because of changes in technology, the law is harming children."
Frame is the prime sponsor of a bill that would create new misdemeanor charges that specifically apply to minors who send nude images of other teens. House Bill 1742 would also exempt teenagers from child pornography charges when they take or send photos of their own bodies.
“The problem I am trying to solve is we have had as many as 50 kids who have been prosecuted with Class B felony sex offenses for sharing intimate images of themselves or of their peers,” Frame says, adding, “Normally, it is shared in the context of an intimate relationship.”
The state Supreme Court recently had a chance to challenge the state's application of the law, in a case involving a 17-year-old who texted a photo of his penis.
Instead, the court affirmed that children who photograph their own genitals or other intimate body parts can indeed be convicted under Washington’s child pornography laws.
In its majority opinion, the court suggested that legislators should change the law if that wasn’t the outcome they intended.
“We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other. We also understand the worry caused by a well-meaning law failing to adapt to changing technology. But our duty is to interpret the law as written,” reads the opinion from September 2017. “If the legislature intended to exclude children, it could do so by amending the statute.”
Decriminalizing teenagers' nude photos of themselves is one goal of the current legislation. But police, school officials and prosecutors say even in cases where teens share compromising photos of other teens, the current penalties are too severe.
The severity of the penalty may actually be counterproductive in efforts to stop cyberbullying and harassment, several people testified during a hearing on Frame's bill last month.
For instance, if someone is distributing photos to humiliate a classmate, the current felony charge for possessing or sharing the images can deter teenagers from coming forward to report it, said Dierk Meierbachtol, chief legal officer of the Office of the Superintendent of Public Instruction.
“Children are reticent to tell their parents, trusted adults, their teachers, counselors, about harassment threats and other behavior that is happening in schools because of this threat of harsh criminal penalties,” Meierbachtol testified at the hearing.
Frame’s legislation addresses this concern as well. If passed, her bill would ensure that teenagers aren't committing a crime if they merely possess an explicit video or photo of someone else 13 or older. The measure would also ensure that in most cases, distributing nude photos of another teenager would be charged as a misdemeanor or a gross misdemeanor instead of a felony.
A first offense would be diverted from the courts; instead of charges, teenagers who share explicit photos would receive education and counseling. Felony charges would still apply if older teenagers possess or distribute explicit images of children 12 or younger, or if they sell explicit images of other teens.
“It’s not saying, ‘This is OK,’” testified Jimmy Hung, a King County deputy prosecutor who is chief of the county’s juvenile division. “It’s saying, it’s just different, and we need to treat it differently. And this gives us tools to do that.”
The bill is supported by the commander of the state's Internet Crimes Against Children Task Force, as well as the Washington Association of Prosecuting Attorneys and the Washington Association of Sheriffs and Police Chiefs.
The American Civil Liberties Union of Washington, which also supports the legislation, says plenty of other states already recognize the distinction between adults who prey on children and teenagers who make bad choices with their cellphones. The ACLU’s analysis found that 22 states already have laws that differentiate between youth and adults when it comes to the penalty for possessing or distributing explicit images.
Vanessa Hernandez, youth policy director at the ACLU of Washington, says adolescents are prone to risk-taking and impulsiveness, and shouldn’t be treated the same as the adults who seek to take advantage of them. “One of the things that you see in the research around youth exchange of intimate images is this is almost always an impulsive, identity-formation type of behavior,” she says.
She says teens who use images to commit crimes such as harassment and voyeurism could still be charged under those other statutes. “Nothing in this law changes that,” Hernandez says.
Still, others say the measure would go too far in lowering the penalties for teenagers who distribute images and videos of their peers engaged in sexually explicit conduct. (The state’s definition of sexually explicit conduct includes not only nudity designed to provoke sexual arousal, but also a variety of real or simulated sex acts.)
“There are some very horrendous actions that are totally unacceptable to be distributed anywhere,” says State Rep. Brad Klippert, R-Kennewick, an opponent of the bill.
Klippert says the bill would allow for a situation where someone aged “17 years, 364 days” could widely disseminate an image or video of another minor engaged in a sex act, without facing much in the way of legal consequences.
“If you’re sending that stuff or distributing that stuff in one of the schools I work in as a school resource officer, I know my parents are not going to be happy,” says Klippert, who works as a Benton County sheriff’s deputy when he is not at the Legislature.
Several lawmakers shared Klippert's concerns when the bill came up for a vote in the House this week. House Bill 1742 passed on a 57-39 vote, with most of the chamber's Republicans voting no. It now heads to the state Senate for consideration.
No one spoke out publicly against the legislation during its committee hearing, but one group, the Family Policy Institute of Washington, had quietly expressed opposition. In the past, the organization has opposed legalization of gay marriage, as well as letting transgender individuals use bathrooms that match their gender identity.
Chris Plante, the Family Policy Institute of Washington's policy director, says the group is concerned about legalizing the act of teens taking nude photos of themselves. He says those stiff legal consequences are an important deterrent, so teens hopefully avoid producing nude selfies that can live forever on the internet.
"It is important for us to be able to look at teens and say to them that, to use the colloquial term, 'Sexting is illegal,'" Plante says. "That's something teenagers do understand. They don’t understand natural social consequences."
Because minors are less capable than adults of grasping the effects of their actions, Plante says, it makes sense to keep sexting illegal for them even though such activity is legal for those 18 and older.
"We have a lot of things that are illegal for children that are legal for adults. We have cigarettes at 18, we have alcohol, we have driving," Plante says. "There’s the hope that adults do better understand the consequences and the risk that they’re taking."
Many defense attorneys, however, say that throwing the book at minors isn’t the best way to stop that kind of unwanted activity.
Spokane County public defender Krista Elliott says that even kids who send out images to embarrass their classmates don't necessarily deserve to be labeled felons and sex offenders, designations that can haunt them for years.
“Most people don’t see the 14-year-old who is sitting in my office who says, ‘I’ve never done anything like this before, and now I’m going to be a sex offender,’” she says.
Under the proposed change in law, “You’re still going to have a penalty, but it’s more likely to be restorative rather than punitive,” says Elliott, who represented the 17-year-old whose child pornography conviction was later upheld by the state Supreme Court.
Nicole's mother says her daughter could have avoided a great deal of emotional trauma had House Bill 1742 been effect before her trial. Legalizing the possession of images, as well as requiring first offenses to be handled outside of court, could have made all the difference, she says.
"I think anyone else who looked at the situation would have said, 'this is ridiculous,'" Nicole's mother says.
“I just hope no one ever has to go through anything like that ever again.”