Fair Questions: When should sexting be a crime?

Recently, I read an excellent piece in the Atlantic about sexting among high-schoolers.  It was of particular interest to me because I remember when sexting (meaning texting nude photos to someone romantically interested) started to become a more common thing.  I myself didn’t have a cellular phone until well after most of my peers had one, and perhaps that’s why I never connected with it.  Or maybe it’s just that I’ve always been interested primarily in women’s minds because I’m very much a man of the mind.

I was taking classes for my first degree (a B.S. in English) the first time I saw someone sexting.  She pulled her pants away from her abdomen, positioned her phone carefully and quickly to snap a photo of the visible part of her genitalia, and then indicated that she had just sent it to a guy she was interested in.  I was puzzled by a few things about this incident, but mostly why she would take the risk of having a photo like that attached to a number which could be identified as hers.  That was a powerful set of information to provide to someone at the time, though it may be less so now.

I understand the motivations for doing it, of course.  The Atlantic article covered quite a few, though I think most of them boil down to insecurity and a desire for approval.  At that age, many behaviors boil down to those two things.  They certainly did for me and for my peers.  The rush of hormones from puberty probably plays a significant role as well, and the fact that at that age human beings calculate risks differently than they do later in life; they’re more likely to weight the reward so highly on their decision-making scales that many risks seem insignificant.

The other important thing about people at this age is, of course, that they are minors.  So taking/possessing nude photos of them comes with a potential child pornography-related charge.  And if, as the article indicates, about 30% of kids that age are taking and/or receiving those photos, then that’s a very large portion of minors who could end up with felony convictions.  I doubt that most people (including the kids) want almost a third of that generation convicted of a felony for simply taking a photo of their body and sending it to someone with whom they have a romantic relationship (or want to).

Nonetheless, I suspect that most people will want to find a way to charge the kids who forward the nude photos without the consent of the photographer to a bunch of friends, or worse, post it publicly on Instagram and popularize it without their consent.  This is the trickier part of the legislative process for states to navigate.  There are a lot of questions to ask, and the answers aren’t exactly settled by existing law or by public moral consensus.

For example, what should the penalty be for publishing nude selfies without the consent of the person who took the photo?  What should the penalty be, if any, for a person who passes along a photo to another person (with assurances of confidentiality) to a 3rd party who then shares the photo publicly?  What should the penalty be, if any, for taking the nude selfie and sending it to someone else?  Does the answer change if they are both minors?  If one is 17 years old and the other is 18 years old?  Would a written contract be required for proof of consent to share the photo?

I’m not sure what the answers are, though I hope we can figure it out soon given how prevalent the problem has become.  My purpose is more to clarify the sorts of questions we need to ask when deciding what our laws are going to be on the cases like what were described in the article.

There are many other good questions to ask: about how women and men are objectified by their peers, about why they are increasingly objectifying themselves, and about why they are so very comfortable with the objectification of themselves and others.  These are questions I hope to address in a later post.

In the meantime, I hope that parents are actively confronting this trend of self-objectification so that their children can learn that deeper and more meaningful relationships are only possible once objectification has been left behind, hopefully through the process of growing into happy and healthy adults.

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