Is “Sexting” Pornography?

According to U.S. federal and state laws, when someone produces, transmits, or possesses images with graphic sexual depictions of minors, it is considered child pornography. Digital media have made the circulation of child pornography even more pervasive, according to a 2006 study on child pornography on the Internet. About one thousand people are arrested each year in the United States for child pornography, and they have few distinguishing characteristics other than being “likely to be white, male, and between the ages of 26 and 40.”¹

Now, a social practice has challenged the common wisdom of what is obscenity and who are child pornographers: What happens when the people who produce, transmit, and possess images with graphic sexual depictions of minors are minors themselves?

The practice in question is “sexting,” the sending or receiving of sexual images via mobile phone text messages or via the Internet. Sexting occupies a gray area of obscenity law—yes, these are images of minors; but no, they don’t fit the intent of child pornography laws, which are designed to stop the exploitation of children by adults.

While such messages are usually meant to be completely personal, technology makes it otherwise. “All control over the image is lost—it can be forwarded repeatedly all over the school, town, state, country and world,” says Steven M. Dettelbach, U.S. attorney for the Northern District of Ohio.² And given the endless archives of the Internet, such images never really go away but can be accessed by anyone with enough skills to find them.

A recent national survey found that 15 percent of teens ages twelve to seventeen say they have received sexually suggestive nude or nearly nude images of someone they know via text messaging. Another 4 percent of teens ages twelve to seventeen say they have sent sexually suggestive nude or nearly nude images of themselves via text messaging. The rates are even higher for teens at age seventeen–8 percent have sent such images, and 30 percent have received them.³

Some recent cases illustrate how young people engaging in sexting have gotten caught up in a legal system designed to punish pedophiles. In 2008, as a high school senior, Florida resident Phillip Alpert, then eighteen, sent nude images of his sixteen-year-old girlfriend to friends after they got in an argument. He was convicted of child pornography and is required to be registered as a sex offender for the next twenty-five years. In Iowa, eighteen-year-old Jorge Canal Jr. was also convicted as a sex offender after sending a photo of his genitals to a fourteen-year-old girl—a friend who asked him to send the photo as a joke. Her parents found the photo and pressed charges. In 2009, three Pennsylvania girls took seminude pictures of themselves and sent the photos to three boys. All six minors were charged with child pornography. A judge later halted the charges in the interest of freedom of speech and parental rights. In all of these cases, and others like them, technology and social trends challenged the status quo beliefs on obscenity laws and the media. The problem of texting potentially embarrassing photos can be solved technologically with Snapchat, an app introduced in 2011 that enables users to send photos that self-destruct in a few seconds. (More recently, however, a forensics company figured out how to resurrect Snapchat photos.) In the legal realm, by 2013 at least twenty states enacted legislation on sexting, often amending laws so that teens involved in sexting are treated with misdemeanor charges rather than being subject to harsher felony laws against child pornography. How do you think sexting should be handled by the law?

“What’s more disturbing—that teens are texting each other naked pictures of themselves, or that it could get them branded as sex offenders for life?”

– Tracy Clark-Flory, Salon.com, 2009