Laws prohibiting the possession, production, and distribution of child pornography are of surprisingly recent origin in the United States. It was not until 1982 that the United States Supreme Court unanimously ruled that sexually explicit images of persons under the age of 18 are not entitled to legal protection under the First Amendment. See New York v. Ferber, 458 U.S. 747 (1982).
Within a few years of the Ferber decision, every state adopted laws criminalizing child pornography (including North Carolina, which adopted its statute in 1985). What no one anticipated (or could reasonably have foreseen) was that just three decades after Ferber, it would be increasingly common for children to take sexually explicit photos of themselves and each other. But academic research shows that at least 28% of teens aged 17 and younger take naked photos of themselves and send them to other underaged individuals. Dr. Jeff Temple, a psychologist with the University of Texas Medical Branch and one of the leading researchers into teen sexting behavior, pointed out to the Fayetteville Observer that his research means that there are millions of children across the United States who could be charged under existing child pornography laws.
As a result, teens around the country face the risk of being jailed and labeled sex offenders under laws that were originally intended to protect children by punishing people who documented their abuse of children or trafficked in images of child abuse. North Carolina is one of the states where that risk is very real. It has statutes prohibiting the display or dissemination of material harmful to minors (N.C. G.S. 14-190.14, -.15), and three felony statutes for sexual exploitation of a minor (N.C. G.S. 14-190.16 [1st degree], -.17 [2nd degree], and -.17A [3rd degree]). None of the statutes provide any accommodation for alleged offenses committed by minors themselves.
Periodically, cases pop up that illustrate how child pornography laws such as these no longer square with teen behavior and shifting cultural mores. One such case involves two students at Douglas Byrd High School in Fayetteville, North Carolina. Football quarterback Cormega Copening (who later transferred to Jack Britt High School, also in Fayetteville) and his girlfriend Brianna Denson exchanged “sexually explicit” photos of themselves sometime during the fall of 2014. Neither of them showed the photos to anyone else and normally, they would never have come to the attention of North Carolina officials.
However, during that same fall, the Cumberland County Sheriff’s Office was investigating the alleged sharing of explicit photos of another person without her consent. During the course of the investigation, officers asked Copening’s mother for permission to examine his phone. According to Sgt. Sean Swain, “He was not a victim, suspect or witness, but was considered an ‘involved other’ in that case.” When Copening’s phone was examined, officers found the photos that he and Denson had exchanged.
Swain told reporters that the Cumberland County Sheriff’s Department had no discretion to overlook the consensual photos exchanged by the two kids. Some people think we targeted these kids, but we saw this and we couldn’t ignore it,” Swain said. “The law is written by the legislators and we are obligated to follow what the legislators tell us to. We have no choice.”
The legal proceedings underscore the ridiculousness of the current legal situation. A search warrant application for Denson’s phone listed her as both the adult perpetrator and the minor victim of a child pornography offense. She was threatened with prosecution as an adult on felony charges for both 2nd degree sexual exploitation of a minor (taking a nude photo of herself) and 3rd degree (possessing that same photograph). If charged and convicted, Denson faced the prospect of a jail sentence and sex offender registration for pointing her smartphone at herself and clicking a button.
To avoid that unpleasant and unreasonable outcome, Denson agreed to plead guilty to a misdemeanor count of “disseminating harmful material to minors,” i.e., sending the photo to her boyfriend. Earlier this summer, she received a sentence that included, among other things, “one-year of probation, a $200 fine, a class on how to make smarter life decisions and [no] access to a cellphone for the duration of her probation.”
This case has surfaced in the media and my social media feeds in large part because a court hearing is looming for her boyfriend, who is facing a total of five felony counts — “two counts of second degree sexual exploitation of a minor and three counts of third degree sexual exploitation of a minor.” Officials at Jack Britt High School recently learned of the charges and removed Copening from his position as team quarterback. That’s a minor issue compared to potential legal outcome, which could see Copening jailed for several years and registered as a sex offender for the remainder of his life.
While it may be true that the Sheriff’s Department had no discretion to ignore potentially illegal behavior when it found the couple’s photos, that does not mean that this couple had to be prosecuted. The concept of prosecutorial discretion is well-established in American law, so at some point a Cumberland County prosecutor made a conscious decision that this case merited the use (or misuse, really) of prosecutorial resources. That dubious decision has been compounded by the office’s apparent unwillingness to allow Copening the opportunity to also plead to a misdemeanor charge, which would eliminate the potential for jail time and sex offender registration.
There is no question that sexting can be a risky behavior — all too often, it can lead to embarrassment, bullying, harassment, exploitation. When children take nude images of themselves, those pictures frequently wind up on the Internet, where they contribute to the stubborn and growing problems of child pornography, child abuse, and sexual trafficking. And certainly, the North Carolina state legislature is entitled to encode the moral values of its citizens into its state statutes. There is no argument here that kids who take and distribute nude photos of themselves should be allowed to do so consequence-free.
At the same time, every state legislature should take a long hard look at the realities of teen physical and social development. The evidence is overwhelming that the judgment centers of the teen brain are not fully developed by the time they hit 16 or 18. Without intending to do so, we have given teens (and even younger children!) access to powerful photographic and video production devices with instantaneous worldwide distribution capabilities. And amidst all of this, teens and younger children increasingly are exposed to more sexually explicit material than at any time in human history, which perforce is having an impact on their sexual development and behaviors.
Taken altogether, it is unrealistic and disproportionate to apply laws aimed at predatory adults to increasingly normal behavior by teens, regardless of how much we may dislike or disapprove of that behavior. As these cases repeatedly illustrate, however, states all too often extract a pound of punishment for an ounce of misbehavior.
We can do better. A number of states have adopted what are known as “Romeo and Juliet” exceptions to their child pornography laws. Back in 2009, for instance, the State of Vermont amended its child pornography laws to make it clear that minors charged with a first offense of sexting would not be prosecuted under the state sexual exploitation law and would not face the prospect of registration as a sex offender. As long as the sexting was consensual, the minors involved would be treated as juveniles and the case would be handled in family court. I consulted with a couple of legislators on the language of the bill and strongly support this approach. So does the American Bar Association, which six years ago urged the adoption “Romeo and Juliet” exceptions across the country:
Just as the Florida Supreme Court once ruled that prohibiting intercourse between two consenting juveniles violated a Constitutional right to privacy, our legislators and courts must revise or clarify current child pornography laws to exclude the possibility of prosecution of those caught consensually “sexting”, yet leave open an avenue to indict and convict juveniles who use technology to exploit other, much younger children. Any effective legislative solution would create a “Romeo and Juliet” safe-harbor exception, allowing juveniles who are roughly the same age to legally sext, but still giving prosecutors the ability to charge individuals in those instances where a large age gap between the participants calls the issue of consent into question. While different, both fundamentally and conceptually from statutory rape, the legal solution should be roughly the same – understanding that sexting may be performed independently of coercion and undue pressure between a 15 and 17 year-old, but still be improper between a 12 and 17 year-old.
The current child pornography laws in many states, including North Carolina, are producing unjust results for kids who “win” a perverse lottery — felony prosecutions when their consensual photos happen to come to the attention of law enforcement. The fact that there is not (and cannot be) universal application of this law to every sexting teen raises the unfortunate specter that any particular case was selected for prosecution for arbitrary and capricious reasons. Until the North Carolina legislature revisits these laws in light of recent technological developments, state prosecutors should not destroy a teen’s life for a minimal infraction.