Do not pervert justice ; do not show partiality to the poor or favoritism to the great , but judge your neighbor fairly .
SEXTING :
EXPOSING DOUBLE STANDARDS IN THE LAW
by Erika L . Lukenbill
With the advent of modern technology and social media , the actions of today ’ s youth are far more public than at any other point in history . In the era of social media and viral videos , it takes just a few moments for a mistake or indiscretion to become public . It is in this setting that “ sexting ” has flourished . Sexting refers to sending or receiving sexually explicit or suggestive photos or videos . This phenomenon has become increasingly common amongst teenagers . While sexting is legal between adults , when sent between minors , these sexually explicit photos meet the definition of child pornography . 1
The law has struggled to keep pace and appropriately deal with minors , most of whom have probably never considered the serious legal consequences of sending or receiving explicit photos . If charged under child pornography statutes , a minor could be tried as an adult and punished with five to 30 years and placed on the state sex offender registry . 2 Prosecutors around the country are constantly put in the unenviable position of determining how to charge these teenagers . Twenty states have adopted laws specifically aimed at sexting between minors ; some reduce the charges to a misdemeanor ; others make it a felony for repeat offenders , while still others simply allow an affirmative defense for minors . 3 Other states , such as Virginia , have yet to make any changes in the law . 4 In the latter states , the charges depend on the discretion of the prosecutor .
Most of the debate and controversy surrounding sexting focuses on how to charge the minors involved . Little discussion has focused on the social media or apps used to facilitate sexting . In fact , while much of the sexting occurs via text messages , the police typically get involved once the photos are posted to a social media website . For example , police in Connecticut got involved after explicit photos were posted to , among others , Snapchat , FaceTime , iMessage , and Kik . 5 In some cases , the minors report
Do not pervert justice ; do not show partiality to the poor or favoritism to the great , but judge your neighbor fairly .
the photos or accounts to the social media corporation , but photos or accounts are rarely taken down immediately . 6 Once the report is made , it takes time for the report to be reviewed by employees of the corporation . 7 In the meantime , the photos go viral , and teenage girls are left feeling violated and betrayed , usually by someone they trusted .
The teenagers who took and sent the photos are not innocent ; the teenagers posting such photos to social media are not innocent . Both deserve to face some sort of legal consequences for their action . But under American law , minors are considered less culpable than adults because of their lack of maturity . 8 They often act impetuously and do not consider the consequences of their actions when making decisions . 9 Yet it seems only the teenagers face the consequences . The social media websites face no consequences for facilitating the distribution of explicit photos of minors . While the social media corporations do not take or send the photos , the photos are stored on the corporations ’ servers . For example , even though private Snapchat photos disappear within seconds , until the message is opened , it is stored on Snapchat ’ s server . 10 While they are on a social media corporation ’ s server , the corporation , like a teenager who was sent the same photo , is in possession of a photo that is legally child pornography .
-LEVITICUS 19:15
Admittedly , a corporation is not a human being . Under the law , however , a corporation is a person . 11 As a legal person , a corporation should be held responsible for its actions , including the act of possessing child pornography on its servers . Although a corporation cannot be imprisoned , it can and should be subject to fines if it has not taken precautions to prevent child pornography from being posted on its social media sites . In facing such fines , the corporations would have an incentive to improve their reporting policies and develop other methods to prevent explicit page 24 | LIBERTY LEGAL JOURNAL | SPRING / SUMMER 2016