This morning in Juvenile Delinquency we discussed this very phenomenon: how sexting, in addition to being another behavior in a long line of moral panics, is also a great examples of cultural lag: when the material technology outpaces our nonmaterial norms and values regarding how to deal with it.
Rethinking Sex Offender Laws for Youth:
And the default reaction amongst adults (particularly over the past 15 years or so) is to criminalize whatever it is kids are doing that we don't understand. Our zero-tolerance response to everything adolescent has led to prosecutions not only for such idiotic behavior like sexting, but traditional adolescent behavior like fighting at school or dissing a teacher or principal. If it can be criminalized, it will be criminalized.
In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting” — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.
But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.“There’s a lot of confusion about how to regulate cellphones and sex and 16-year-olds,” said Amy Adler, a law professor at New York University. “We’re at this cultural shift, not only because of the technology, but because of what’s happening in terms of the representation of teen sexuality as you can see on ‘Gossip Girl.’ ”
Certainly your kids should be discouraged from taking pictures of themselves in various states of undress and sending them to other people, but to attach felony-level criminal sanctions to it makes a mockery of the law and law enforcement, along the lines of Prohibition.
Thankfully, saner heads are now speaking up.
Some of the 14 states considering legislation would make sexting a misdemeanor, while others would treat it like juvenile offenses like truancy or running away.
There are [also] those who favor decriminalization.
“Generally this should be an education issue,” said Witold Walczak, legal director of the Pennsylvania American Civil Liberties Union. “No one disputes that sexting can have very bad consequences, and no parent wants kids sending out naked images. But if you’ve got thousands of kids engaging in this, are you going to criminalize all of them?”
But it's not even "thousands of kids"; it's less than 4% of teens according to a Pew research poll published a few months ago.
What it boils down to is: this is a parenting issue (or lack thereof), not a criminal justice issue. The faster we get it out of the hands of prosecutors, who as a rule of thumb are clueless when it comes to youth and cultural lag, the better.