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February 5, 2010

Juvenile rights advocate: Sexting bill is overreaction

Bill expected to go to House committee for vote next week.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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A proposed bill that would make it a misdemeanor for a minor to transmit a nude photo of himself or herself via a cell phone or the Internet is an over-reaction to a problem that would be more properly addressed through increased education, several juvenile rights advocates said Thursday.

“This is essentially killing a flea with a hammer,” Marsha Levick, legal director for the Juvenile Law Center in Philadelphia, said during a telephone press conference hosted by the center to voice opposition to House Bill 2189.

The bill, which is expected to go before the House Judiciary Committee for a vote next week, would make the transmission of a nude photo of a minor – either by the minor or someone else – a second degree misdemeanor.

The practice, commonly known as “sexting,” has become a concern among parents, school officials and law enforcement nationwide. A recent study estimated that up to 20 percent of teenagers have engaged in the activity.

Some prosecutors have reacted by charging “sexters” with possession of child pornography, a felony. A federal appellate recently heard arguments regarding such a case from Wyoming County.

Ironically, it was concern that juveniles were being charged with felonies that led bill’s prime sponsor, state Rep. Seth Grove, R-York, to introduce the legislation.

“We don’t have a set policy across the state of how to deal with sexting. Some DAs were charging people with felonies,” Grove said when contacted at his office Thursday. “I didn’t think the penalty fit the crime.”

Levick acknowledged the bill would lessen the degree of criminality for sexting. The issue, she said, is whether the behavior should be a crime at all.

Levick was joined at Thursday’s press conference by Witold “Vic” Walczak of the American Civil Liberties Union and Dr. Rollyn Ornstein, a physician who specializes in adolescent medicine.

The officials say they share the concern about the harm sexting can cause to juveniles. But they argue that criminalizing the behavior will not solve the problem.

“It’s foolish, it’s reckless and it’s stupid, but it is not conduct I would want my daughter arrested for,” Levick said.

The issue would be more adequately addressed by offering educational programs that stress the dangers of the practice and by encouraging parents to discuss the issue with their children, Levick said.

Charging the youths is “a complete over-reaction to a problem that should be dealt with within the family, school and community,” Levick said.

“If anyone is aware their child engaged in sexting, I don’t think the first thing they do is call police. The first thing they do is take the cell phone,” Levick said.

Walczak also noted that, while the bill would lessen the criminal penalty, it also expands the definition of what constitutes nudity, which would allow for far more people to be charged than under the current statute.

Current child pornography laws require that the photo must depict a sexual act or a lewd display of the genitals sent for the purpose of sexually stimulating the recipient, Walczak said. House Bill 2189 would expand that definition to include the mere display of the breasts, genitals or buttocks for a female, and the display of a male’s buttocks or genitals.

The bill is so broad, Walczak said, that it would make it a crime for someone to transmit a photo of a naked child depicted in a National Geographic magazine, or the well-known ad for Coppertone tanning oil in which a child’s buttocks is exposed after a dog pulls down her swimsuit.

Dauphin County District Attorney Ed Marsico, president of the Pennsylvania District Attorneys Association, said he understands there are some concerns the bill is too broadly written. He said the legislation is a “work in progress” and those concerns can be addressed without scrapping it entirely.

“We are worried that we are going down the path where we say it’s OK to distribute nude photos of individuals under 18,” Marsico said.

Marsico said the DA’s Association, which supports the bill, believes a law is needed to protect children, either from their own behavior or the behavior of others who might disseminate photos without the subject’s permission.

“What about the boy who sends a picture his ex-girlfriend gave him to 100 kids in his high school? Should that be a crime or not? I believe it should be,” Marsico said.

But Levick and Walczak said there are other laws that already address that situation. A person who distributes a photo without the subject’s permission could be charged with harassment, for instance.

The Judiciary Committee is set to review the bill on Feb. 9. The ACLU has been pressing for the committee to hold a public hearing on the issue before voting, but so far none have been scheduled.

Walczak said he’s hopeful legislators will be convinced not to support the bill. If it is passed in its current form, he said he’s confident it would be overturned in the courts because it is too broadly worded, which makes it unconstitutional.

“The U.S. Supreme Court has said you can’t make simple nudity, even if it involves a minor, a crime, and that’s exactly what the House bill does,” Walczak said.

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