Imagine getting arrested for flirting or foreplay. That's the nightmare scenario for two North Carolina teens, who got slapped with felony charges for having a consensual sexually explicit SMS exchange.
It all started when local police looked through the male teen's phone for evidence involving a statutory rape case they are investigating (he is not the suspect, but they believed evidence may be on his phone). While they were looking, they found explicit text messages sent between the male teen and his female friend. And then charged them both with sexual exploitation of a minor.
The female teen took a plea deal — even though she was listed as the victim as well as the perpetrator for one of them. If she hadn't taken the plea deal, she risked being convicted and labelled as a sex offender for the rest of her life.
For sending nudes.
If the teens would have had an old-fashioned IRL bone session with each other, it would have been perfectly legal — they were both 16 at the time and there's no law against 16-year-olds having sex in North Carolina.
The male teen could still be convicted and charged as a sex offender.
Ars Technica talked to law professor David Ball about the absurd prosecutorial overreach going on here:
"It's a canon of criminal law, you can't be an accomplice to an act that has you as the victim — the problem does seem to be that she is charged with exploiting herself," he said. "Maybe it's different if she posts to Instagram or Facebook or something like that? How would we feel if someone had taken a polaroid and sent it only to the recipient? To what extent does the technology change the analysis? I have a hard time figuring out what the model of harm is. This seems like a troubling example of overreaching, and this is not to minimise the real harms that child porn causes."
This is a case of horrid prosecutorial judgment, but you really shouldn't be able to charge someone with a crime against themselves to begin with. While it's important to have legislation in place to bring charges against predatory exploiters of children, state law's failure to distinguish between sexual exploitation of minors and minors consensually doing sex stuff is on full display here.
It's just plain shameful. Hitting young people with charges like this dilutes the gravity of child exploitation charges and damages lives.
Some US states, like Vermont, Nevada and Rhode Island, have adapted laws to protect minors from being labelled sex offenders for sexting. But other states clearly have a ways to go to protect against this kind of overzealous interpretation of the law.
Unfortunately, this isn't an isolated incident. In Arkansas, three teens were arrested last year for sexting each other. The same sheriff's office behind these arrests told the Fayetteville Observer that it investigates several sexting exchanges a month. Sigh.