Editor’s note: This article appears in the February 2017 edition of North Carolina Lawyer and the December edition of the NCBA’s Juvenile Justice & Children’s Rights Section newsletter.

By LaToya B. Powell

Most parents today are warning their teenagers about the dangers of sharing sexually explicit images of themselves with others by cell phone or computer, also known as sexting. The behavior is not only inappropriate, but it also exposes teens to potential embarrassment, humiliation, and further victimization if the photos are disclosed to third parties without their consent. However, the potential harm caused by sexting goes far beyond the social stigma.

A growing number of teens in NC and across the nation are facing criminal charges for sexting. LaToya Powell, Teen “Sexting” is a Problem, But Is it a Crime?, NC Crim. Law Blog (Sept. 8, 2015, 8:29 AM), http://nccriminallaw.sog.unc.edu/teen-sexting-is-a-problem-but-is-it-a-crime/. Because the state does not have a sexting specific law, the conduct is typically prosecuted under laws prohibiting child pornography and obscenity. Id. These offenses carry severe penalties, including a permanent criminal record, sex offender registration, and imprisonment for up to 20 years for juveniles who are charged as adults.[1] Advocates argue that such harsh consequences are grossly disproportionate to the harm caused by consensual teen sexting and many states have created new laws to address the problem.

Sexting Is Considered Child Pornography in N.C.

In September 2015, two teenagers in Fayetteville, North Carolina were each charged with felony child pornography for sending naked selfies to each other when they were both age 16. If convicted of sexual exploitation of a minor (i.e. child pornography), the teens, who were in a dating relationship, would have faced mandatory sex offender registration. However, they both pled guilty to a reduced charge of disseminating harmful material to minors, a misdemeanor which was dismissed after they successfully completed a term of probation under a deferred prosecution agreement. Paul Woolverton, Sexting Charges Dismissed for Fayetteville Teenager, Fayobserver.com (July. 7, 2016), http://www.fayobserver.com/news/crime_courts/sexting-charges-dismissed-for-fayetteville-teenager/article_bae7b802-8b76-542b-9cd5-f0671cee3d47.html.

The case generated widespread criticism of North Carolina’s treatment of minors who engage in sexting, particularly 16 and 17 year olds who are automatically prosecuted as adults. See, e.g., Cristina Corbin, NC High School Gridder Faces Felony Charges Over “Terrible” Sexting Law, Fox News (Sept. 4, 2015), http://www.foxnews.com/us/2015/09/04/nc-high-school-gridder-faces-felony-charges-over-terrible-sexting-law.html. Because the child pornography statutes define a “minor” as a person under 18, 16- and 17-year-olds can simultaneously be considered victim and perpetrator. That is, they can be criminally charged for creating, possessing, or distributing child pornography when they take nude photos of themselves and share them with others. G.S. 14-190.13; G.S. 14-190.17; G.S. 14-190.17A. Juveniles under 16 who sext can also be charged with child pornography, but they are prosecuted in juvenile court where the allegations are not made public and if adjudicated delinquent, they do not have to register as sex offenders.

Even when criminal charges are later reduced or dismissed, the collateral consequences of an adult sexting charge can be devastating. In the Fayetteville case, the high school senior who was criminally charged for sexting his girlfriend was suspended from his football team where he had played quarterback. He was teased by other students at school who called him a “felon” and was denied college football scholarships due to his probation, although he ultimately received a partial scholarship. His parents also suffered due to the significant legal expenses they incurred and they will have to spend more money hiring an attorney to get his record expunged. Supra, Woolverton.

Perhaps even more troubling is that if the teens had actually engaged in sex, rather than sexting, they would not have been charged. In North Carolina, at age 16, teens can legally consent to engage in sexual intercourse but if they exchange sexually explicit photos, they commit a felony. Most teens likely don’t realize this disparity.

Sexting Is a Common Practice Among U.S. Teens

Although research varies, a 2012 study of nearly 1,000 high school students in Texas found that about 30 percent of them admitted sharing a nude photo by text or email, and 31 percent had requested one from someone else. Patricia Reaney, Sexting Common Behavior Among U.S. Teens – Study, Reuters (July 2, 2012, 4:23 PM), http://www.reuters.com/article/sexting-teens-study-idUSL2E8I26PF20120702. A different study by researchers at Drexel University found that 28 percent of college students reported sexting as minors. Alex McKechnie, Majority of Minors Engage in Sexting, Unaware of Harsh Legal Consequences, Drexel.edu (June 18, 2014), http://drexel.edu/now/archive/2014/June/Sexting-Study/. The majority of those students (61 percent) did not know sexting could be considered child pornography. Id.

Increasing media attention of this issue also illustrates that sexting may be fairly common among adolescents.

  • In April 2014, authorities in Louisa County, Virginia discovered that more than 100 teens between the ages of 14 and 17 were using the social media website Instagram to share hundreds of nude images and videos of underage girls. Although no charges were ultimately filed, the conduct possibly constitutes felony distribution of child pornography under Virginia law which requires lifetime sex offender registration. Keith Wagstaff, Teen ‘Sexting’ Ring Discovered on Instagram, NBC News (April 10, 2014, 1:16 PM), http://www.nbcnews.com/tech/social-media/teen-sexting-ring-discovered-instagram-n76861.
  • In October 2014, more than 30 students in Oakland County, Michigan were implicated in a sexting ring that involved young girls, all under the age of 16, sending nude cell phone pictures of themselves to boys, who then shared the images with their friends. Lori Higgins, Teens Might Face Felony Charges for Sexting, USA Today (October 16, 2014, 3:55 PM), http://www.usatoday.com/story/news/nation/2014/10/16/michigan-sexting-case/17356905/. The teens could have faced felony child pornography charges but were ultimately referred to juvenile court due to their ages. Paul Kampe, Five Teens Referred to Juvenile Court in Rochester Hills “Sexting” Investigation,” The Oakland Press (March 11, 2015, 9:45 AM), http://www.theoaklandpress.com/article/OP/20150311/NEWS/150319920.
  • In November 2015, school officials at a high school in Canon City, Colo., discovered that students exchanged hundreds of nude or semi-nude photos of themselves using a photo vault app that hides the images by disguising itself as a calculator or media player. The students could have been charged with violating felony child pornography laws that require sex offender registration. However, the district attorney decided not to file any charges after determining the offenses did not involve “aggravating factors” such as the involvement of adults. Greg Botelho and Michael Martinez, DA: No Charges Against Colorado Students in Sexting Scandal, CNN (December 9, 2015, 4:37 PM), http://www.cnn.com/2015/12/09/us/colorado-sexting-scandal-canon-city/.

These cases may confirm what one researcher determined about why kids sext. Hanna Rosin, Why Kids Sext, The Atlantic, Nov. 2014, http://www.theatlantic.com/magazine/archive/2014/11/why-kids-sext/380798/. In the age of Facebook, Instagram, and Snapchat, sexting is a modern day form of flirting or adolescent sexual exploration that teens don’t think is harmful. Id.

Some States Already Have Separate Teen Sexting Laws

The emergence of teen sexting has caused many states to consider whether laws primarily intended to protect children from adult sexual predators should be used to prosecute the minors themselves. The National Conference of State Legislatures reported that since 2009, at least 20 states have passed legislation that treats underage sexting differently from child pornography.

States that have passed sexting legislation recognize that even the consensual sharing of sexually explicit images of minors is harmful but generally treat the offense as a misdemeanor with relatively light punishments, such as fines, counseling, community service, and out of court diversion programs. Sameer Hinduja and Justin W. Patchin, State Sexting Laws: A Brief Review of State Sexting and Revenge Porn Laws and Policies, Cyberbullying Research Center, http://cyberbullying.org/state-sexting-laws.pdf (last visited Feb. 17, 2016). Most sexting laws also apply only when all the parties involved are minors under 18 and they include graduated sanctions. For example:

  • In 2010, Arizona passed a juvenile sexting law that applies to minors under 18 who send or receive a sexually explicit image of a minor. Distributing the image to only one other person is a petty offense, punishable by a fine. Distributing the image to more than one person elevates the offense to a Class 3 misdemeanor, punishable by a $500 fine and/or up to 30 days in jail. However, repeat offenders may be charged with a Class 2 misdemeanor, punishable by a $750 fine and up to 4 months in jail. Rev. Stat. § 8-309.
  • In 2013, Arkansas enacted a juvenile sexting law that makes the possession of sexually explicit digital material by a juvenile under 18 a Class A misdemeanor. For the first offense, a juvenile may receive up to 8 hours of community service, if he or she pleads no contest or guilty. Code Ann. §§ 5-25-101, 5-27-609.
  • In 2014, Oklahoma created a misdemeanor offense for minors under the age of 18 who engage in the sexting of images or videos of minors between the ages of 14 and 17. If the minor depicted in the image consented and the image was distributed to five or fewer persons, the juvenile may receive a fine of up to $500 for the first offense or up to $1,000 for a second or subsequent offense. Additional penalties include up to 40 hours of community service and juvenile diversion. Stat. tit. 10A § 2-8-221. Sexting that occurs without the consent of the depicted minor, involves images of minors under 14, or is distributed to more than five persons is also a misdemeanor but carries tougher penalties. Id.

In at least four states with sexting specific laws, the offense can also be a felony. Florida and Utah make underage sexting a felony for repeat offenders. Fla. Stat. Ann. § 847.0141; Utah Code Ann. § 76-10-1206. Georgia law classifies sexting as a felony depending on the facts of the case. Ga. Code Ann. § 16-12-100. The fourth state, Nebraska, treats all sexting as a felony. Neb. Rev. Stat. §§ 28-1463.03, 28-1463.04, 28-1463.05, 28-813.01. Many sexting laws also provide an affirmative defense for minors who receive unsolicited sexts and take steps to either delete the images or report them to an authority figure.

Closing the Gap In N.C. Law

It is unclear whether North Carolina will soon join the growing list of states with a sexting law. However, last year, the legislature quietly enacted a “revenge porn” statute to address the nonconsensual disclosure of sexually explicit images of another person for the purpose of harassment, intimidation, or humiliation. G.S. 14-190.5A.

Unlike the child pornography offenses, the revenge porn statute creates separate penalties for adults and minors. The crime is a Class H felony if the defendant is 18 or older. For minors who are under 18, a first offense is a Class 1 misdemeanor and a second or subsequent offense is a Class H felony. G.S. 14-190.5A(c). This penalty structure suggests that lawmakers recognize that children are generally less culpable than adults due to childhood immaturity and impulsivity. Therefore, the revenge porn statute gives juveniles a break on the first offense by treating it as a misdemeanor. On the other hand, NC law ironically now treats revenge porn by juveniles as a less serious offense than consensual sexting.

At least one NC lawmaker has publicly expressed that the state needs a law to specifically address teen sexting. Sen. Jeff Tarte, a Republican from Huntersville, told a reporter he was not aware that sexting was not covered under current N.C. law and that he would push for the legislature to consider creating new legislation to close this gap. Jim Bradley, 9 Investigates: Growing Trend of Sexting Among Teenagers, www.wsoctv.com (May 6, 2015, 5:56 PM), http://www.wsoctv.com/news/news/special-reports/9-investigates-growing-trend-sexting-among-teenage/nk9hK/. However, following the Fayetteville sexting case, Republican Rep. Paul “Skip” Stam of Apex told a reporter he was not yet convinced that North Carolina needs a sexting law. Paul Woolverton, Lawmaker: Child Porn Law Misused Against Sexting Teens, But Tools Needed To Fight Predators, Fayobserver.com (Sept. 12, 2015), http://www.fayobserver.com/news/local/lawmaker-child-porn-law-misused-against-sexting-teens-but-tools/article_bff69e1f-de50-5bbb-b4a6-e003ff4efdd1.html. Stam expressed concern that such a law might create a loophole for adult pedophiles and send the wrong message to teens that sexting is OK.

Despite these concerns, most lawmakers would probably concede that consensual teen sexting is different than child pornography. How they address this issue will likely be the source of serious debate. Reviewing how other states have responded might be a good place to start.

LaToya B. Powell is assistant professor of public law and government at the UNC School of Government.

[1] The maximum aggravated range sentence for first-degree sexual exploitation of a minor, a Class C felony, is 231 months, although such a sentence would be unlikely for a teenager. See G.S. 15A-1340.17(c) & (e).