Neshaminy students could be prosecuted under sexting law

Jo Ciavaglia: 215-949-4181;

email: jciavaglia@calkins.com; 

Posted: Monday, November 10, 2014

Is it reckless teenage behavior or child porn trafficking? When it comes to sharing sexually explicit photos of juveniles, the answer depends on the age.

A 2-year-old Pennsylvania law makes it a crime for anyone under 18 to share or transmit nude images of anyone between the ages of 12 and 17, including the self-portraits commonly called “selfies.” And even if an exchange is consensual, potential criminal charges can apply to both the sender and receiver.

But the law gets cloudy when an 18-year-old transmits a nude photo of a juvenile, local defense attorneys said. Technically, if a sender is 18, the juvenile sexting law no longer applies, meaning the person could face a third-degree felony charge for sending a nude photo of a minor, Middletown defense attorney Jason Rubinstein said.

This issue that has become known as sexting recently surfaced locally when Neshaminy School District officials and police confirmed they’re investigating reports of a series of explicit photos shared via cellphone text messages among high school students.

Authorities believe that between eight and 20 students could have been involved, but police haven’t released further information about the alleged incident, including the ages or genders of the suspects and victims. Middletown Chief Joseph Bartorilla said the investigation is continuing.

Three Lehigh County teenage boys were charged last month with transmitting sexually explicit images by a minor, a misdemeanor. The boys allegedly sent nude photos of another teen to fellow students. Lower Saucon Township police allege the boys convinced another boy to send them nude pictures by pretending to be a teen girl on a messaging site.

Sexting is hardly a new phenomenon among teens, according to a 2008 study.

The National Campaign to Prevent Teen and Unplanned Pregnancy’s survey found that one in five teen respondents had electronically sent or posted online nude or semi-nude photos or videos of themselves. And nearly half of the teens surveyed reported receiving a text message containing nude photos.

Psychologists suggest that sexting among teens reflects a combination of 24-hour instant communication ability and the impulsive nature of young adult brains.

“Teens take naked pictures of themselves mainly to share with current or prospective romantic partners, just as some adults do,” said Temple University professor Laurence Steinberg, who specializes in adolescent psychology. “The difference is that adolescents are less likely than adults to think about the longer-term consequences or the potentially negative consequences of their actions.”

Adolescence is a time when people are especially oriented toward their peers, which means they’re interested in impressing their peers, added Steinberg, the author of “Opportunity: Lessons from the New Science of Adolescence.”

“My guess is that not all of the sharing is intended to deliberately hurt the person who is depicted in the photo. To the extent that sharing a naked picture of someone makes you — the sharer — look cool, by possessing something that others want to have,” he said. “An adolescent may not really think through the fact that sharing the picture will not only enhance his standing, but may also hurt someone else.”

At least 19 states have laws addressing the sharing of nude or sexually explicit photos among juveniles, according to the National Conference of State Legislatures. New Jersey’s law also went into effect in 2012 and allows first-time offenders to avoid a criminal record and be placed in an educational program, if the photos are posted or sent without malicious intent.

Before the 2012 Pennsylvania law took effect, sending nude photos of minors — even between minors — fell under child pornography trafficking, a felony crime. The new law uses a tier system for juveniles who electronically send nude images, Langhorne defense attorney Niels Ericksen said.

Minors who consensually exchange nude photos could face a summary charge, essentially a non-traffic violation, he said. A minor who receives a nude photo of another minor and shares it with others could be charged with a third-degree misdemeanor. Teens who distribute a nude photo of another minor without that person’s knowledge or consent could face second-degree misdemeanor charges.

The law also allows for teens found delinquent — the equivalent of guilty in adult court — to enter a diversionary educational program and have their criminal record expunged.

The sexting law doesn’t apply to images taken or distributed for commercial purposes and hard-core sexual images of minors. Teens also can face felony child pornography-related charges for distributing or filming juveniles engaged in sex acts or possessing sexual images of children under age 12.

Such was the case for a Lehigh County girl, who was charged in 2012 with possession and distributing child pornography for posting a video of a teen girl and boy engaged in consensual sex on the social media site Facebook. A county judge dismissed the charges, but the state Supreme Court reversed the decision in January and the girl now faces felony child porn charges in juvenile court.

Rubinstein said he has no problem with the prosecution of teens who share nude photos as provided under the law, though he doesn’t believe individuals whose photos were shared without their knowledge should face additional punishment.

“Perhaps a ‘Scarlet Letter’ punishment, where all minors who sent the pictures have their names put on a list to be posted at the principal’s office,” he added. “Anything to deter our kids from taking ‘selfies’ they will regret, and from forwarding them along.”

The Juvenile Law Center in Philadelphia hasn’t tracked prosecutions under the law since it took effect, but its deputy director believes the law unfairly targets juveniles since there is no compatible law prohibiting consensual sharing of photos among adults.

“The idea to carve out a special section of the Crime Code — that only children can commit — struck us as unnecessary,” Marsha Levick said. “They’re using technology we didn’t have 20 years ago to express and explore their sexuality.”

Levick added that the law is a knee-jerk reaction by adults who don’t understand the role that technology plays in young people’s lives and its potential far-reaching and life-altering outcomes. She added that the malicious dissemination of images — beyond the original consensual sharing — is something that should be looked at.

Jo Ciavaglia: 215-949-4181; email: jciavaglia@calkins.com; Twitter: @jociavaglia