Sexting in the Schoolyard
By Natasha K. Segool & Tony D. Crespi
Rapid advances in digital technologies have resulted in school professionals having to grapple with new and complex dilemmas related to balancing student privacy, safety, and legal rights and restrictions, often with little to no guidance from school or district policies. Students commonly bring cellular telephones, smartphones, iPods, and other portable media devices to schools. Cell phone ownership and usage has become increasingly commonplace among many young children and adolescents, with 75% of 12–17 year-olds reporting owning cell phones in 2009 (Lenhart, Ling, Campbell, & Purcell, 2010) and 33% owning smartphones (Nielsen Company, 2010) that connect users to the Internet. Technological advances that allow cell phone users to send digital text messages, still images, and moving video, as well as provide access to the Internet with data plans, have exponentially increased the complexity of the ethical, legal, and professional issues facing school professionals who have a responsibility to educate students in a safe school environment. This article considers the legal and professional issues that sexting raises for school psychologists, discusses the emotional consequences of sexting among teens, explores new laws that may change the legal landscape for minors involved in sexting, and provides key insights for how school psychologists can mitigate the risks of sexting among students.
"Sexting" can be defined as the act of sending, receiving, or retaining sexually explicit text messages, pictures, or video using cellular phone or other digital media technology. While sexting most commonly occurs between cellular phones users, sext messages can also be transmitted through e-mail, instant message, or online social networking sites. An essential component of a sext is that it is produced and disseminated with the full volition of the person depicted. As such, sext messages differ fundamentally from sexually explicit language or images being distributed without a person’s consent. With more than half of teens sending text messages on a daily basis (Lenhart et al., 2010), and teenagers averaging over 3,000 texts per month (Nielsen Company, 2010), the risk for minors engaging in sexting activities is high.
In fact, in an Associated Press/MTV poll of 600 teens, 18% of teens reported having received a naked picture or video from another person and 10% of teens reported sending naked pictures or videos of themselves to others (Knowledge Networks, 2009). Additionally, the fact that youth can send and receive messages almost instantly increases risk, as a text, e-mail, or online post has the potential to "go viral," and be forwarded to a great number of other individuals beyond the originally intended recipient. It is of great concern that 17% of teens report sharing naked videos or pictures that they have received with other individuals beyond the intended recipient (Knowledge Networks).
Both the consensual and nonconsensual distribution of sexually explicit text messages, images, and videos have important social, emotional, and legal implications for children, teens, families, and schools. We argue that it is essential for school psychologists to be knowledgeable about sexting from the multiple perspectives of those who sent the sext, received the sext, or were depicted in the sext in order to effectively counsel and support children, families, and schools coping with the layered effects of sexting. We begin our discussion by examining the current state of legislation across the United States that applies to sexting before discussing the social–emotional effects of sexting, and conclude with specific suggestions for actions that school psychologists can take in their practice to actively respond to the realities of sexting by schoolchildren.
Without qualification, the legal implications of sexting can change a person’s life course. When sexting occurs among underage children and adolescents, the person depicted, the photographer, or any individuals who forward sexts can face prison time and legal implications. A transmitted image of oneself, a friend, or classmate in a seminude or nude state can result in a private communication becoming a criminal case for the transmission of child pornography. What follows is a selective snapshot of a handful of representative legal cases that have occurred across multiple states in the United States. We review these cases to illustrate how relatively common adolescent risk-taking behaviors, many of which occur or are identified at school, can result in adjudication.
Perhaps the most well publicized legal case involving consensual sexting among underage teenagers began when topless images of three 13-year-old girls in Pennsylvania were discovered by teachers on the cell phones of male classmates in the Tunkhannock School District in 2008 (Miller v. Skumanick, 2009). Tunkhannock School District officials turned the confiscated cell phones over to the district attorney of Wyoming County, Pennsylvania, who determined that the images were provocative and that the girls were accomplices in the production of child pornography. He subsequently threatened felony charges against the youth depicted in the images, as well as those who were found to have the sexts stored on their cell phones, unless they participated in an educational and counseling remediation program, probation, and drug testing. The penalty for being found guilty of these charges could result in a lengthy prison term and a permanent criminal record (Miller v. Skumanick). While all of the students found in possession of the images agreed to participate in the reeducation program, the three teens depicted in the sexts did not, arguing that they were not involved in the images’ dissemination to the large number of people who eventually received them through viral forwarding (Miller v. Skumanick).
The three filed a lawsuit, alleging that their First Amendment right to free expression had been violated. Ultimately, United States District Judge James Munley issued an injunction prohibiting charges and asserting that the photographs did not constitute child pornography under Pennsylvania law and that the youngsters were protected under the First Amendment. Finally, following 2 years of legal proceedings and an appeal to the United States Court of Appeals, the Third Court of Appeals ruled in March 2010 that the teenagers could not be prosecuted under child pornography laws solely for appearing in the cell phone images (Miller v. Mitchell, 2010). While these three young teenagers were ultimately not prosecuted for child pornography, this long legal battle exemplifies the potentially far-reaching and serious legal consequences associated with digitalized nude or seminude images and the subsequent distribution of easily reproducible sexts.
In 2005, a Florida juvenile court charged a 16-year-old girl and her 17-year-old boyfriend with the production of child pornography following the discovery of digital photographs that the two teens had taken of themselves while engaged in sexual activity. This charge was initiated and prosecuted even though the images were taken consensually and were never distributed beyond the couple (A.H. v. Florida, 2007). Elsewhere in 2009, a 14-year-old teen in New Jersey was charged with possession and distribution of child pornography after she posted nude photos of herself on Myspace.com, charges that with conviction have a potential sentence of 17 years in jail and registration as a sex offender (DeFalco, 2009). Finally, in yet another case in 2010, after nude cell phone images of one student were forwarded on to numerous others, three Washington state middle school students were charged with felony distribution of child pornography, charges that carry a maximum of 30 days incarceration in a juvenile detention facility along with required registration as a sex offender (Pawloski, 2010). Ultimately, in each the cases summarized above, the legal charges were eventually reduced; i.e., in Florida, the teens were convicted of delinquency; in New Jersey, the teen was placed on probation and required to undergo therapy; and in Washington, the charges were reduced to misdemeanors with the expectation that they would be dropped pending completion of a juvenile court diversion program (A.H. v. Florida; Associated Press, 2011; Q13 Fox News Online, 2010). However, these criminal cases clearly emphasize the serious legal implications that sexting can have, including potentially facing child pornography charges and sex offender registration.
Under federal law, and most existing state laws, child pornography is defined as any visual depiction (photograph, film, videotape, picture, or digital image) produced by electronic, mechanical, or other means, where production involves a person under age 18 engaging in sexually explicit conduct (National Center for Missing & Exploited Children, 2011). Thus, all cell phone images, or sexts, depicting teenagers under the age of 18 fit the legal definition of child pornography and may be prosecuted as such. At present, these laws have resulted in young teens, such as those described above in Pennsylvania, Florida, New Jersey, and Washington, being charged with possession or distribution of child pornography. Unfortunately, these cases are not exceptional, and legal charges related to sexting have been filed in 41 states across the United States, with one Utah juvenile court attorney reporting that he sees a least one youth sexting case filed weekly (Park, 2010).
At the same time, it appears that much of the current legislation across the United States does not adequately address changing technology and teen use of technology; and laws are changing. Since 2009, 30 states have considered legislation, and nine states have enacted legislation, related to sexting, with the majority of bills aimed at decreasing penalties for minors engaged in consensual sexting (National Conference of State Legislatures, 2011). For example, the state of Connecticut differentiated between felony child pornography and underage sexting by creating a misdemeanor for certain acts of sexting or acts involving electronic child pornography by persons 13 to 15 years of age for transmission and 13 to 17 years of age for possession (Connecticut Public Act 10- 191, 2010). In Nebraska, it is now legally permissible for persons under the age of 19 to have possession of a sexually explicit visual depiction of another youth who is at least 15-years old if that youth voluntarily shared the image and the image was not further disseminated. Alternatively, a youth who further distributes that image to others may face criminal felony charges (Nebraska Legislative Bill 97, 2009). Similarly, the governor in Illinois signed a bill into law in 2010 reducing penalties for consensual sexting to a misdemeanor, with penalties increasing for further distribution, up to a felony charge for distribution on the Internet. Additionally, the law creates noncriminal penalties in the forms of monetary fines, diversion programs, and loss of access to electronic communication devices (Illinois Public Act 096-1087, 2011).
|School Sexting Prevention and Preparedness Checklist
|1. The school has a stated policy on bullying and cyberbullying and this policy explicitly discusses the prohibition of sexting on school grounds.
|2. The school has a stated policy for digital media technology usage on school grounds, including cell phones, iPods, cameras, and portable computers.
|3. The digital media technology usage policy clearly states how sexting, including distribution and possession, will be handled internally to the school and externally with law enforcement, as applicable.
|4. The school staff are aware of state laws regarding the possession of nude or seminude images that may meet the definition of child pornography.
|5. The students are explicitly instructed on the emotional and legal risks of sexting, and are informed of school policy related to sexting.
|6. All school staff know what steps to take when sexting is suspected and following the identification of sexting to support student safety and to ensure compliance with both school policy and state legislation.
|7. The school psychologist is trained in counseling skills and risk assessment to actively respond to individuals and groups affected by sexting.
The potentially harmful effects of sexting also extend well beyond the courtroom, with many teens experiencing emotional distress, bullying, alienation, and loss of privacy following the transmission of intimate images beyond the originally intended recipient. While bullying, teasing, and taunting among school children and adolescents is not a new phenomenon, advances in technology that facilitate the broad and rapid dissemination of images greatly increases the risk that the individuals depicted in sexts will be targeted for social and emotional abuse by their peers. There have been at least two cases of suicide that were precipitated by social rejection and bullying following sexting incidents. In 2008,18-year-old Ohio resident Jessica Logan committed suicide after a nude image that she had previously sent to her boyfriend was distributed to hundreds of classmates and students at area schools after they broke up (Kranz, 2009). Similarly, 13-year-old Floridian Hope Witsell committed suicide in 2009, following months of bullying and taunting after she sent a topless image of herself to a boy and it was virally forwarded on to students in area schools (Meacham, 2009). These cases illustrate the devastating social and emotional consequences that can be associated with sexting among school-age youth. With over 20% of teens reporting having either sent or received a sext, the risk is high for teens to experience bullying or taunting and associated feeling of depression, isolation, hopelessness, and even suicidality as a result of sexting (Knowledge Networks, 2009). Unfortunately, predicting the reaction of teenagers, from those who will commit suicide to those who might experience short-term emotional trauma, remains difficult to assess.
Practice Considerations for School Psychologists
How can and should school psychologists support children, youth, schools, and communities coping with issues related to sexting? How can school psychologists help to mitigate legal and social–emotional risk for youth who engage in sexting? Fundamentally, children and teens are unlikely to fully understand or consider all of the risks involved in sexting. Children’s reasoning and judgment skills are still developing throughout adolescence, and poor planning, decision-making, and lack of understanding of the risks and implications of one’s actions are commonplace (Steinberg & Scott, 2003). Few teens consider that a single text message can be forwarded in rapid succession by recipients, resulting in the widespread distribution of an image intended to be a private exchange between two individuals. It is important for school psychologists to educate teens, parents, and schools about the risks of sexting and to provide supportive counseling for those school children impacted by sexting. Similarly, few teens recognize that transmittal—that is, sending a text message, e-mail, or social networking post—of a nude or seminude image is illegal and may violate child pornography laws. It is essential that school psychologists, school professionals, parents, and teens understand that there are actions that teens can take to minimize risk of criminal prosecution for child pornography.
For a teen who receives unsolicited sexts, an affirmative defense may exist in numerous states as well as in Federal court, if one or more of the following criteria are met: (a) fewer than three visual images of child pornography are possessed, (b) the teen did not knowingly purchase, procure, request, or take other action to cause the images to come into his or her possession, (c) the teen promptly took reasonable actions to destroy each image, (d) the teen reported the matter to a law enforcement agency and did not allow any person other than law enforcement access to the depictions, (e) the teen reasonably believed that the person depicted was at least 16- to 18-years-old and not severely cognitively impaired, or (f) the images were for a bone fide artistic, medical, scientific, or educational purpose (National District Attorneys Association, 2010). It is essential for school psychologists to be aware of legislation in the specific state where they work, as there are important legislative differences by state. Additionally, rather than only working with students following a sexting crisis, there are preventative activities that school psychologists can take to promote awareness of the risks associated with sexting and to promote school policies that decrease the risk of sexting occurring in school. We provide a checklist in Table 1 that school psychologists may use to evaluate how prepared their school is in terms of both risk reduction and preparedness for responding to a sexting event in the schools.
At the same time, from a systems perspective, school psychologists should consider whether or not existing school policies and state laws recognize the changing nature of electronic technology and the cognitive reasoning skills of the youth who use this technology so frequently. Are contemporary policies and laws in pace with modern technology? Should a consensual image sent between minors be considered child pornography? Should forwarding that text image on to others be considered child pornography? What factors affect this determination? At what age should youth be held legally responsible for their texts? What legal and educational responsibilities does a school have if it discovers such an image in a student’s possession? Truly, these questions are complex and daunting.
Clearly, youth, parents, and schools need to more fully understand the social, emotional, and legal implications of sexting. School psychologists have an unprecedented opportunity to support students, families, and communities and to act as catalysts for positive change. Counseling for both victims and perpetrators of sexting, school-wide and community education, and advocacy efforts to support legislative reform are just a few of the ways in which school psychologists have a role to play in responding to this need. The challenge is great. Our help, though, can positively impact the lives of countless teenagers. School psychologists might consider the following educational, consultative, counseling, and advocacy interventions.
Educational and consultative training interventions. Children, adolescents, families, public schools, and community agencies need to better understand the negative emotional and legal consequences associated with sexting. School psychologists can offer workshops and consult with youth and parents through schools and community agencies. Working in tandem with community agencies, school psychologists can help youth and adults better understand the potentially lifelong implications of such behaviors. Educating and empowering parents to make it a common practice to monitor their child’s cell phone and computer usage may be another important intervention to protect youth.
Counseling interventions. Additionally, school psychologists can provide individual and group counseling, as well as family services targeted toward young people who have been or are at significant risk of being affected by sexting. Counseling interventions can help youth and parents better respond to the emotional and legal consequences of sexting for those who send, receive, or are depicted in nude or seminude images. In particular, school psychologists have an essential role in supporting youth whose own images have been disseminated beyond their intended recipient through counseling interventions that address social isolation or bullying, depression, feelings of hopelessness, or suicidality. Additionally, just as school psychologists commonly ask about risk-taking behaviors such as drinking and drug use, they may consider universally inquiring about the use of cell phones and computers to transmit or receive images of a sexual nature when they work with teens. Asking these questions and accurately assessing a student’s risk may be the key to preventing sexting among youth in schools. Counseling interventions can be invaluable in this matter from a primary, secondary, and tertiary intervention framework.
Advocacy interventions. School psychologists may also consider working with local agencies and advocacy groups to support legislation that more carefully considers the appropriate legal consequences for minors who are charged with sexting. New laws reducing sexting to a misdemeanor for youth have been passed in nine states in the past few years, which has resulted in dramatic differences in punitive responses from one state to the next (National Conference of State Legislatures, 2011). Currently, only Colorado, Nebraska, and Vermont laws differentiate between legal consensual sexting between two teens meeting certain age criteria and illegal distribution of nude or seminude images beyond the originally intended recipient (Colorado House Bill 09-1163, 2009; Nebraska Legislative Bill 97, 2009; Vermont Senate Bill 125, 2009). School psychologists have an important role to play as child mental health experts in advocating for developmentally appropriate legislation that (a) protects youth from being victimized by adult perpetrators of child pornography, (b) protects youth from the potentially destructive emotional consequences of viral dissemination of sexts, and (c) protects youth from overly punitive sanctions for consensual sexting.
A. H. v. Florida, 949 So. 2d 235 (Fla. Ct. App. 2007).
Associated Press. (2011, January 11). NJ lawmakers tackle teen sexting. Retrieved from http://www.nbcphiladelphia.com/news/tech/NJTeen-Sexting-Bill-114484809.html
Colorado House Bill 09-1163, 18 Col. Rev. Stat. §§ 6-401-403 (2009).
Connecticut Public Act 10-191, 13 Conn. Stat. §§ 53a-196-250 (2010).
DeFalco, B. (2009, March 27). Girl, 14, arrested for posting nude MySpace pics. Retrieved from http://www.boston.com/business/articles/2009/03/27/girl_14_arrested_for_posting_nude_myspace_pics
Illinois Public Act 096-1087, 705 Ill. Comp. Stat. § 405 (2011).
Knowledge Networks. (2009, September 23). The Associated Press-MTV poll digital abuse survey. Retrieved from http://surveys.ap.org/data/KnowledgeNetworks/AP_Digital_Abuse_Topline_092209.pdf
Kranz, C. (2009, March 22). Nude photo led to suicide. Retrieved from http://news.cincinnati.com/article/20090322/NEWS01/903220312/Nude-photo-led-suicide
Lenhart, A., Ling, R., Campbell, S., & Purcell, K. (2010, April 10). Teens and mobile phones. Pew Internet & American Life Project. Retrieved from http://pewinternet.org/Reports/2010/Teens-and-Mobile-Phones.aspx
Meacham, A. (2009, November 29). Sextingrelated bullying cited in Hillsborough teen’s suicide. St. Petersburg Times. Retrieved from http://www.tampabay.com/news/humaninterest/article1054895.ece
Miller v. Mitchell, 598 F. 3d 139 (3d Cir. 2010).
Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009).
National Center for Missing & Exploited Children. (2011). What is child pornography? Retrieved from http://www.missingkids.com/missingkids/servlet/PageServlet?PageId=1504
National Conference of State Legislatures. (2011, March 26). 2011 legislation related to "sexting." Retrieved from http://www.ncsl.org
National District Attorneys Association. (2010). Child pornography possession statutes. Retrieved from http://www.ndaa.org/pdf/Child Pornography Possession Statutes 3-2010.pdf
Nebraska Legislative Bill 97, 2 Neb. Rev. Stat §§ 28-320-813 (2009)
Nielsen Company. (2010, December). Mobile youth around the world. Retrieved from http://www.nielsen.com/us/en/insights/reports-downloads/2010/mobile-youtharound-the-world.html
Park, L. (2010, March 27). Youth sexting rate alarming; officials urge parents to be more vigilant, educate children. Retrieved from http://www.standard.net/topics/sexting/2010/03/27youth-sexting-ratealarming-officials-urge-parents-be-morevigilant-educat
Pawloski, J. (2010, January 30). Teens face felony ‘sexting’ charges. The Olympian. Retrieved from http://www.theolympian.com/2010/01/30/1120421/teens-face-felonysexting-charges.html
Q13 Fox News Online. (2010, February 17). Charges reduced for Lacey teens accused of ‘sexting.’ Retrieved from http://www.q13fox.com/news/kcpq-021610-laceysexters,0,3970041.story
Steinberg, L., & Scott, E. S. (2003). Less guilty by reason of adolescence: Developmental immaturity, diminished responsibility, and the juvenile death penalty. American Psychologist, 58, 1009-1018. doi: 10.1037/0003-066X.58.12.1009
Vermont Senate Bill 125, 13 Ver. Stat. Ann. §§ 2822-2827 (2009).
Natasha K. Segool, PhD, NCSP, is an assistant professor of psychology at the University of Hartford, Connecticut.
Tony D. Crespi, EdD, ABPP, is a licensed psychologist, certified school psychologist, and professor of psychology at the University of Hartford.