Illustration by Jon Krause
Sexting, derived from the word ‘texting,’ is the act of taking a sexually suggestive photo, usually of oneself, and sending it via picture message from one cell phone to another.” — Virginia State Crime Commission
Maj. Donald Lowe of the Louisa County Sheriff’s Office knows all about sexting — too much, perhaps.
Last April, more than 100 teenagers in Central Virginia, many of them in Louisa, were found to be involved in a sexting ring. An investigation led to the discovery of more than 1,000 photos of nude or semi-nude teenagers on cellphones and on Instagram accounts. “We’re not unique,” Lowe says. “Talk to your neighbors’ kids. They have the same situation we do. What’s amazing is the sheer number of people involved.”
Lowe is a man of the moment in the national conversation about sexting. A lengthy story in the November issue of The Atlantic magazine focused on Louisa’s sexting investigation, later mirrored on a PBS broadcast, in which Lowe played a prominent role as he responded to questions.
Lowe acknowledges that the implications of sexting loom large for the wide swath of young people who have participated in it, or become unwary victims of it when their photos are transmitted to others, or posted online, without their permission.
One of the thorny issues in the ongoing debate over sexting is whether the crime always fits the punishment. That’s one of the legal and philosophical questions the State Crime Commission is asking itself as it reviews recommendations for sexting legislation: “Are child pornography laws, which were meant to criminalize the predatory behavior of older men, appropriate for the prosecution of teenagers who have engaged in sexting voluntarily?”
Lowe has a lot of the same questions, and so do his law enforcement colleagues. “I’ve been getting calls from all over the country once this got out. Someone in the Midwest arrested some students and charged them, and the community went in uproar. So you’re damned if you do and damned if you don’t. One side says child porn is child porn. On the other side are naïve teenagers. Do you really want to ruin their future careers?”
On Dec. 2, the State Crime Commission postponed until next year a decision on whether to make the texting of sexually explicit photos by teenagers a misdemeanor. Despite the commission’s hesitancy, lawmakers could still introduce sexting legislation. But commission member Richmond area Del. Jennifer McClellan has her own idea about what needs to be proposed. “I think we need to strike the right balance between protecting kids from predators without criminalizing teenagers for doing stupid things,” she says.
For example, McClellan says that under existing law, if a 17-year-old takes a nude selfie, that is a felony. Technically, it’s manufacturing child pornography, even if the teenager does nothing with the photograph. “Most kids have no idea what can land them in jail,” she says.
Jay C. Paul, commonwealth’s attorney for Prince George County, is co-chair of the Virginia Criminal Justice Conference, which has been studying possible sexting legislation for three years. The conference consists of prosecutors, lawyers, judges and others who attempt to reach consensus on criminal justice issues. Its recommendations on sexting legislation are now in the hands of the Crime Commission.
Paul, who has a 16-year-old child, says the issue of sexting hits close to home. “Some say we shouldn’t be soft on crime. Others say that ‘Romeo and Juliet’ romance shouldn’t be punished in the same way as a pedophile. The boyfriend and girlfriend who are sending pictures are thinking about love. They’re not thinking about exploitation.”
Paul says there seems to be a lot of middle ground between the views of those who don’t want to be soft on crime when it comes to teenage sexting, and others who are in the Romeo and Juliet corner. Part of that balance, he believes, is imparted in the Criminal Justice Conference’s recommendations.
For example, one recommendation says that taking a lewd photo of oneself, without anyone else in the picture, is the least culpable form of juvenile sexting, and is more appropriately punished by a Class 1 misdemeanor than the existing unclassified felonies of one to 20 years (if the subject is 15 or older) or five to 30 years (if younger than 15). “We don’t think we’ve got anything that’s going to make all parties happy,” he says of the conference’s recommendations.
Paul anticipates there will be tweaks and changes in the recommendations as they are reviewed. “We’re hopeful that something will go forward, because we think it’s something that needs to be addressed,” he says.
Like Lowe and McClellan, Paul believes that teenagers fail to understand the long-range implications of sexting. He can imagine someone showing up for a 20th high school reunion and learning that a nude photograph of herself as a teenager is still making the rounds on the Internet.
Some Virginians believe that any kind of sexting law will create problems. The Safer Virginia group is among them. “Characterizing sexting as child pornography is another failure of the state to implement research-based laws that protect both individual freedoms and society,” says J.P. Welch, a member of Safer Virginia, in an email response.
Welch referenced a sexting case in Manassas that made national headlines. “As in the recent Manassas case, prosecutors and detectives who want to photograph a teenager’s penis as evidence in a sexting case have simply lost their minds,” Welch says, adding, “Children sexting is a parental issue. Sexting should not be happening, but since children are emulating adults in the media, it remains a parental issue, nevertheless.”
Back in Louisa, Maj. Donald Lowe reflects on the sexting photos he’s seen and the controversy his investigation, the media attention and all the rest has caused in his rural community. Then he recalls the middle school choir event he attended recently.
“It’s as close as I’ll get to hearing angels sing,” he says. “And I thought, in a couple of years, how many of those children will go on to careers, and how many may end up destroying their lives?”
