A 2014 Drexel University study about teenage “sexting” habits is back in the national spotlight after the U.S. House of Representatives passed a new bill that some lawmakers are calling “overbroad” and “punishing.”
The Protecting Against Child Exploitation Act of 2017, which passed the House by an overwhelming majority in May, is intended to prosecute child pornographers. So what’s the problem? The bill also includes wording that says teens who exchange explicit photographs or videos could be sent to jail for 15 years.
That means locking up young people for an activity that has become as normal to them as scrolling through Instagram.
Drexel researchers found in 2014 that more than 50 percent of college students surveyed had exchanged sexually explicit text messages as a minor, and nearly all of those messages were in a consensual context. Twenty-eight percent reported sending explicit images or videos.
A June 9 USA Today op-ed cites the research, saying that “such behavior among teens is not unexpected,” and the bill “goes against a growing push to change the justice system nationwide.”
David DeMatteo, JD, PhD, an associate professor in the College of Arts and Sciences and Kline School of Law, who led the 2014 study, calls the bill “well-intentioned but misguided.” Below, he weighs in on the danger of treating adolescents like predators.
What part of this bill is controversial?
The bill includes a mandatory minimum sentence for anyone who even attempts an act that’s prohibited by the law. That means the court has no flexibility to consider contextual factors or other considerations that might call for a more lenient sentence. It also is not clear that this is something the federal government should be regulating.
This bill is aimed at punishing child pornographers. Isn’t that a good thing?
Certainly as a society we should protect children and young people, and often that means protecting them from themselves. But I do not see the protection value in this bill. It consists entirely of punishment, and there is no recognition that sexting is normative behavior. I think sexting should be regulated, the same way we regulate drinking for young people and other activities. And certain types of sexting should be punished harshly. But to use a draconian punishment for a normative, widespread behavior is going to have extreme, unintended consequences.
What are some of those unintended consequences?
Logistically, if the bill becomes a law that is actually used by prosecutors, I think they will be overwhelmed with the number of cases they would be asked to prosecute. Secondly, the bill only provides for punishment, and it doesn’t provide any remedial measures. Most damaging is that it could literally ruin lives. A boyfriend and girlfriend could theoretically send each other nude photos consensually and both be sent to jail for over a decade.
How can state laws change to actually protect children and teenagers when it comes to sexting?
I think sexting should be regulated, but this bill overlooks how the world has changed in the past 15 years. Young people communicate electronically — where in the past people flirted face to face, now people flirt over the Internet and phones. Again, just because it’s normative, it doesn’t mean it doesn’t need to be addressed. Even when sexting is consensual, it can be dangerous and lead to repercussions. But the issue needs to be addressed in a way that doesn’t overly burden young people.
In some states now, sexting is removed from child pornography laws, and legislators are enacting sexting-specific legislation. This is ideal, because sexting-specific laws clearly define what constitutes sexting and help judges avoid overly harsh sentences. I also like the idea of escalating punishment — so the first offense might be an educational class regarding the dangers of sexting, and then the punishment would increased after subsequent violations.
What happens next?
Now the bill goes to the Senate. The overwhelming support in the House suggests it will get similar support in the Senate, probably without many changes. But eventually its problems will need to be addressed. There are serious practical and constitutional issues with this bill.
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