Sexting, the act of sending or receiving nude or partially nude photos of oneself or another person via cell phone, has become a worldwide phenomenon in a short amount of time. If a minor engages in the act of sexting, he or she may be prosecuted under child pornography laws. In March of 2009, the ACLU filed a lawsuit against the district attorney of Wyoming County, Pennsylvania, claiming that the civil rights of three high school girls were violated when their pictures were discovered on other students' cell phones by officials at the Tunkhannock School District. The case challenges what constitutes child pornography because the teens appear either topless or in their underwear in the digital photos. None of the photos in question depict genitals, although one of the girls appears baring her breasts.
There have been numerous legal cases where sexting has brought the definition of what constitutes child pornography under a spotlight. For example, in 2008 assistant principal Ting-Yi Oei of Freedom High School in South Riding, Virginia was charged with possession of child pornography after he was asked to investigate a rumor that kids were sexting at a school where he worked. After uncovering a partially nude photo of a girl and reporting it back to his principal, he was asked to save the photo on his computer for evidence. Oei was later charged with possession of child pornography and related crimes. However, the case was dropped because the images were not considered child pornography under Virginia law because they were not “sexually explicit.” Nudity alone was not enough to prosecute the thirty-year teaching veteran. Although he was never brought to trial, Oei was forced to spend over $150,000 to defend himself and clear his name.
Child pornography laws are put in place to protect children against abuse and exploitation. But when a minor photographs themselves and carelessly sends that photo to a friend and is later accused of child pornography, the only protection may come from a good defense attorney, or, in the case mentioned above, by the backing of the American Civil Liberties Union.
“Kids should be taught that sharing digitized images of themselves in embarrassing or compromised positions can have bad consequences, but prosecutors should not be using heavy artillery like child pornography charges to teach them that lesson,” said Witold Walczak, Legal Director for the ACLU of Pennsylvania. “These are just kids being irresponsible and careless; they are not criminals and they certainly haven't committed child pornography.”