1 The state of Iowa provides one of the most comprehensive ...
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Author’s Original:
[?] Numerous books and periodicals have documented this trend. See, e.g., Powell, Andrew, Sex, Power, and Consent: Youth Culture and the Unwritten Rules of the Internet (1st ed. Cambridge University Press 2014) [hereinafter Powell, Sex, Power, and Consent]; Robby Soave, Teen Boy Will Be Charged as Adult for Possessing Naked Pics of a Minor: Himself, Fayetteville Observer Online, June 2, 2014, at 6.
Edited Version:
[?] Numerous books and periodicals have documented this trend. See, e.g., Andrew Powell, Sex, Power, and Consent: Youth Culture and the Unwritten Rules of the Internet 174 (2014); Robby Soave, Teen Boy Will Be Charged as Adult for Possessing Naked Pics of a Minor: Himself, Fayetteville Observer Online (N.C.) (June 2, 2014, 4:31 PM), []
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2 Black’s Law Dictionary provides a more complete definition: “Sexting /ˈsɛkstɪŋ/ (idiomatic, colloquial): n. the act of sending sexually explicit text messages and/or photographs between cell phones; v. gerund or present participle of sext (used with or without object); etymology: blend of sex + texting; usage: the verb to sext is most often used in the form sexting (“In the end, the reason that Anthony Weiner is unlikely to survive the sexting scandal comes down to what I call the ick factor.” Howard Kurtz, Wounded Weiner, Daily Beast (June 8, 2011)); coordinate terms: textual intercourse, sextortion.” Black’s Law Dictionary 1446 (10th ed. 2014). See also Sexting: What Parents Need to Know, by Randall Smith-Peterson in the March 8, 2015, issue of Parents Magazine starting on page 63.
Edited Version:
2 Black’s Law Dictionary provides a more complete definition:
Sexting /ˈsɛkstɪŋ/ (idiomatic, colloquial): n. the act of sending sexually explicit text messages and/or photographs between cell phones; v. gerund or present participle of sext (used with or without object); etymology: blend of sex + texting; usage: the verb to sext is most often used in the form sexting . . . ; coordinate terms: textual intercourse, sextortion.
Sexting, Black’s Law Dictionary (10th ed. 2014); see also Randall Smith-Peterson, Sexting: What Parents Need to Know, Parents Mag., Mar. 8, 2015, at 63 (defining sexting as the sending or receiving of sexually explicit or sexually suggestive images, messages, or video via a cellphone or the Internet).
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3 Id. at 64.
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3 Smith-Peterson, supra note 2, at 64.
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4 Article 26, North Carolina General Statues Annotated sec. 14-190.16 (for the definition of first degree sexual exploitation of a minor); North Carolina Statutes sec. 14-190.17 (for the definition of second degree sexual exploitation of a minor); North Carolina Statutes sec. 14-190.17A (for the definition of third degree sexual exploitation of a minor) (2008); Mass. Ann. Laws ch. 272, §§ 29B (a)–(c) (LexisNexis 2010) (this chapter provides the penalties for production, possession, and dissemination of child pornography; 18 U.S.C. § 2252 et seq. (2012) (chapters 71 and 110 of title 18, primarily §§ 2252–60(b), describe the federal crimes of possession, receipt, and trafficking of child pornography).
Edited Version:
4 18 U.S.C. §§ 2252–2260(b) (2012 & Supp. 2015) (describing the federal crimes of possession, receipt, and trafficking of child pornography); Mass. Gen. Laws ch. 272, § 29B(a)–(c) (2010) (providing the penalties for production, possession, and dissemination of child pornography); N.C. Gen. Stat. § 14-190.16 (2008) (defining first degree sexual exploitation of a minor); id. § 14-190.17 (defining second degree sexual exploitation of a minor); id. § 14-190.17A (defining third degree sexual exploitation of a minor).
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5 See. e.g., State of Utah in the interest of Z.C., a minor, 165 P.3d 1206, 1209 (Utah Supreme Ct. 2008) (holding that a child pornography conviction of a teen for sexting would result in an “absurd outcome”); A.H. v. Fla., 949 So. 2d 234, 239 (2007) (reversing the lower court conviction of a teen prosecuted under Florida’s child pornography laws for sexting her boyfriend); Mary Jo Miller v. Philadelphia County District Atty.’s Off., 598 F.3d 139, 155 (2009), cert. denied, 559 U.S. 631 (2009) (for a TRO preventing DA from initiating criminal charges in a teen sexting incident); but see State v. Canal, 773 N.W.2d 528, 533 (2009) (affirming the judgment below because the evidence was sufficient to support a conviction for knowingly disseminating obscene material to a minor).
Edited Version:
5 See, e.g., Miller v. Phila. Dist. Attorney’s Office, 598 F.3d 139, 155 (3d Cir. 2009) (granting TRO preventing DA from initiating criminal charges in a teen sexting incident); A.H. v. State of Florida, 949 So. 2d 234, 239 (Fla. Dist. Ct. App. 2007) (reversing the lower court conviction of a teen prosecuted under Florida’s child pornography laws for sexting her boyfriend); State of Utah ex rel. Z.C., 165 P.3d 1206, 1209 (Utah 2008) (holding that a child pornography conviction of a teen for sexting would result in an “absurd outcome”). But see State v. Canal, 773 N.W.2d 528, 533 (Iowa 2009) (affirming the judgment below because the evidence was sufficient to support a conviction for knowingly disseminating obscene material to a minor).
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6 See Robert D. Richards and Clay Calvert, When Sex And Cell Phones Collide: Inside The Prosecution Of A Teen Sexting Case, 31 Hastings Communication and E’ment. L.J. 166, 171 (2009). Professors Richards and Calvert recount the story of Phillip Alpert, a teen convicted as a child pornographer for sending an uninhibited photo of himself to his girlfriend. Id. at 172–174. As a registered sex offender, he received a “Sexual Offender/Predator Notice” from the Florida Department of Law Enforcement—a flyer that contained, among other things, his name, address, criminal conviction, and a color photograph. See Florida Department of Law Enforcement—Sexual Offender/Predator Flyer, ?media/File:Alpert_sex_offender_flyer.jpg_%20j;lkasdj;klj%20_a;lkj;liujkl;jf;alkjd;lk%20_kj;;;;ja;lkhr;liui;klj;kjl;lkj; (last visited May 1, 2016). The information was available online for the public, and Alpert had to disseminate the flyer in his neighborhood. Id. at 177. As a result of the conviction, he had to drop out of community college, he could not find a job, and was even unable to visit his father who lived in proximity to an elementary school. Id.
Edited Version:
6 See Robert D. Richards & Clay Calvert, When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case, 31 Hastings Comm. & Ent. L.J. 166, 171 (2009). Professors Richards and Calvert recount the story of Phillip Alpert, a teen convicted as a child pornographer for sending an uninhibited photo of himself to his girlfriend. Id. at 172–74. As a registered sex offender, he received a “Sexual Offender/Predator Notice” from the Florida Department of Law Enforcement—a flyer that contained, among other things, his name, address, criminal conviction, and a color photograph. See Florida Department of Law Enforcement—Sexual Offender/Predator Flyer, Department_of_Law_Enforcement.htm#2008 (select “Public Records,” follow “Sex Offender Registry” hyperlink, choose “alphabetical,” search for “Alpert”) (last visited May 1, 2016). The information was available online for the public, and Alpert had to disseminate the flyer in his neighborhood. Richards & Calvert, supra at 177. As a result of the conviction, he had to drop out of community college, he could not find a job, and was even unable to visit his father who lived in proximity to an elementary school. Id.
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7 Although Tier I sex offenders are convicted of the least serious (usually misdemeanor) offenses in the federal statutory scheme, they must nonetheless register for 15 years, renewing their registration every one hundred and twenty days. Karen J. Terry, John S. Furlong, and Marcus Dickerson, Sex Offender Registration and Community Notification, found in A Practitioner’s Guide to the Adam Walsh Act of 2006 89, 111 (Civic Resource Institute: 2007) (collecting essays relevant to the defense of minors accused of sex offenses).
Edited Version:
7 Although Tier I sex offenders are convicted of the least serious (usually misdemeanor) offenses in the federal statutory scheme, they must nonetheless register for fifteen years, renewing their registration every 120 days. Karen J. Terry et al., Sex Offender Registration and Community Notification, in A Practitioner’s Guide to the Adam Walsh Act of 2006, at 89, 111 (Lori McPherson ed., 2007) (collecting essays relevant to the defense of minors accused of sex offenses).
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Author’s Original:
8 There are constitutional concerns as well. Sexts are usually captured from a teen’s phone, although not necessarily pursuant to a warrant. See, e.g., Philadelphia District Atty.’s Off., supra note 5, at 150. The Fourth Amendment, however, protects against unreasonable searches of this nature, and predicates invasive inspections of personal effects upon probable cause. United States Constitution’s Bill of Rights, Sept. 25, 1789, at amendment 4. Regardless of whether the images are seized lawfully, the legal system has often demonstrated an inability to make nuanced distinctions, most notably in the area of regulating sexual behavior. See generally Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1406 (2002) (striking down a federal law criminalizing virtual child pornography as distinguished from sexually explicit material that uses actual minors in its production). But see Ashcroft v. Free Speech Coalition, 122 S. Ct. at 1411 (believing the regulation constitutional since “Computer-generated images virtually indistinguishable from real children in sexually explicit conduct”).
Edited Version:
8 There are constitutional concerns as well. Sexts are usually captured from a teen’s phone, although not necessarily pursuant to a warrant. See, e.g., Miller, 598 F.3d at 150. The Fourth Amendment, however, protects against unreasonable searches of this nature, and predicates invasive inspections of personal effects upon probable cause. U.S. Const. amend. IV. Regardless of whether the images are seized lawfully, the legal system has often demonstrated an inability to make nuanced distinctions, most notably in the area of regulating sexual behavior. See generally Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002) (striking down a federal law criminalizing virtual child pornography as distinguished from sexually explicit material that uses actual minors in its production). But see id. at 268 (Rehnquist, C.J., dissenting) (believing the regulation constitutional since “[c]omputer-generated images [are] virtually indistinguishable from real children in sexually explicit conduct”).
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Author’s Original:
9 See generally Amy Adele Hasinoff, Sexting as Media Production: Rethinking Social Media, Sexuality, and the Law, in A Practitioner’s Guide to the Adam Walsh Act of 2006, at 24, 32 (Lori McPherson ed., 2004) (advocating legislative action to make the distinction between sexting and child pornography perspicuous); but cf. Ashcroft, 535 U.S. at 268 (criticizing the majority’s willingness to distinguish between two forms of child pornography); compare People v. Shields, 199 Cal. App. 4th 323, 334 (2011), with A.H. v. State of Florida, 949 So. 2d 234, 239 (Fla. Dist. Ct. App. 2007).
Edited Version:
9 Compare People v. Shields, 199 Cal. App. 4th 323, 334 (2011) (affirming child pornography conviction of a school bus driver who distributed graphic pictures of an autistic minor whom he transported daily), with A.H., 949 So. 2d at 239 (reversing the lower court conviction of a teen, prosecuted under Florida’s child pornography laws, for sexting her boyfriend). But cf. Free Speech Coalition, 535 U.S. at 268 (Rehnquist, C.J., dissenting) (criticizing the majority’s willingness to distinguish between two forms of child pornography). See generally Amy Adele Hasinoff, Sexting as Media Production: Rethinking Social Media, Sexuality, and the Law, in A Practitioner’s Guide, supra note 7, at 24, 32 (advocating legislative action to make the distinction between sexting and child pornography perspicuous).
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10 See Sarah Thompson, Comment, Sexting Prosecutions: Minors as a Protected Class from Child Pornography Charges, 2014 U. Mich. J.L. Reform 117, 126 (2014); Susan Hanely Duncan, A Legal Response Is Necessary for Self-Produced Child Pornography: A Legislator’s Checklist for Drafting the Bill, 89 Or. L. Rev. 645, 659 (2010); Powell, supra note 1, at 174; State of Utah ex rel. Z.C., 165 P.3d at 1209.
Edited Version:
[?]0 See Z.C., 165 P.3d at 1209; Powell, supra note 1, at 174; Susan Hanely Duncan, A Legal Response Is Necessary for Self-Produced Child Pornography: A Legislator’s Checklist for Drafting the Bill, 89 Or. L. Rev. 645, 659 (2010); Sarah Thompson, Comment, Sexting Prosecutions: Minors as a Protected Class from Child Pornography Charges, 2014 U. Mich. J.L. Reform 117, 126.
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Author’s Original:
1[?] See supra note 5 and accompanying text.
Edited Version:
[?]1 See supra note 5 and accompanying text.
Explanation: You’re not delusional: these are the same; there’s no explanation necessary.
Author’s Original:
[?]2 Id. That is not to say there is no place for punishment in the response, but it should be driven by schools and parents, not law enforcement. Thompson, supra note 10, at 124 (“Once schools have set clear expectations regarding sexting, they should implement fair and reasonable punishment schemes.”) (emphasis in the original).
Edited Version:
[?]2 See supra note 5 and accompanying text. That is not to say there is no place for punishment in the response, but it should be driven by schools and parents, not law enforcement. Thompson, supra note 10, at 124 (“Once schools have set clear expectations regarding sexting, they should implement fair and reasonable punishment schemes.”).
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Author’s Original:
[?]3 Although prosecution is not the answer, there is a place where the law can do some good. See eg Pruitt, Joanna L., Pusey, Portia, and Leary, Mary, “The Child As Victim And Perpetrator: Moderating The Laws Punishing Juvenile Sexting”, 13 Vanderbilt Jrn’l of Entm’t and Technology Law 129, 149 (2010). Some courts agree. See e.g. State of Utah in the interest of C.Z., a minor, 165 P.3d 1209 (Utah Supreme Ct. 2008) (condemning the “absurd outcome” that results from over zealous prosecutions).
Edited Version:
[?]3 You supply the edited footnote.
Author’s Original:
[?]4 There are a number of reasons that prosecution is an inappropriate response to teenage sexting. See, e.g., K. Schorsh, “Sexting may spell court for children,” Chicago Tribune (January 29, 2010), p. B4 (exculpatingly insufficient neurological development); Robert D. Richards & Clay Calvert, When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case, 31 Hastings Comm. & Ent. L. J. 166, 171 (2009) (punishment too severe); Wastler, S., “The Harm in Sexting?” (Harv. Univ. 2010) (constitutional concerns).
Edited Version:
[?]4 You supply the edited footnote.
Author’s Original:
[?]5 See, generally, Amy Adele Hasinoff, Sexting as Media Production: Rethinking Social Media, Sexuality, and the Law, in A Practitioner’s Guide, supra note 7, at 24 (advocating legislative action to make the distinction between sexting and child pornography perspicuous); see also A.H., 949 So. 2d at 239 (where the court reversed the lower court conviction of a teen prosecuted under Florida’s child pornography laws for sexting her boyfriend); but see Batman et al. v. Commissioner of Internal Revenue, 189 F.2d 107, 109 (1951), cert. denied 342 U.S.877 (1951); compare A.H. v State of Florida, 949 So. 2d 234, 239 (Fla. Dist. Ct. App. 2007) (disagreeing with court below) and State of Utah ex rel. Z.C., 165 P.3d 1206, 1209 (Utah 2008) (same) with Canal, 773 N.W.2d at 533 (affirming judgment below); see Philadelphia District Atty.’s Off., supra note 5, at 150.
Edited Version:
[?]5 You supply the edited footnote.
Author’s Original:
[?]6 See U.S. Const. amend. IV; Ashcroft v. Free Speech Coalition, 535 U.S. 234, 268 (2002) (Rehnquist, C.J., dissenting); N.C. Gen. Stat. § 14-190.16 (2008); Mass. Gen. Laws ch. 272, § 29B(a)-(c) (2010); 18 U.S.C. § 2252 (2012 & Supp. 2015); Smith-Peterson, supra note 2, at 64; Schorsh, supra note 14; Wastler, supra note 14, at 688; Richards & Calvert, supra note 6, at 177; Powell, supra note 1, at 174; Batman, 189 F.2d at 109; Miller, 598 F.3d at 155; Canal, 773 N.W.2d at 533; A.H., 949 So. 2d at 239.
Edited Version:
[?]6 You supply the edited footnote.
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