Teens and Sexting: Lifting Legal Sanctions

Does New Mexico’s new law get it right?

Posted May 05, 2016

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Late last year, after teen sexting scandals in Long Island, NY, and Cañon City, CO, the legal ramifications of teen sexting hit the news. At that time I wrote, in an article posted here (link is external), that “most jurisdictions have not addressed teen sexting issues, meaning teen sexters (such as those in Long Island and Cañon City) can face legal sanctions that may be inappropriately harsh, as the laws under which police and prosecutors near always operate are intended as highly punitive measures for adult child porn offenders.”

Since that time, the state of New Mexico has passed a law (link is external) allowing minors between the ages of 14 and 18 to engage in consensual sexting. This means that adolescents in New Mexico can now consensually sext without risking arrest, felony child porn/endangerment charges, possible incarceration, and lifetime registration as a sex offender. (Other states, most notably Colorado, are considering similar legislation (link is external).)

In general, proponents of the New Mexico law argue that in today’s increasingly digital world the snapping and sending of sexy selfies is a relatively common form of adolescent sexploration, as is the casual swapping of preexisting sexual imagery via sext, and arresting kids for engaging in these behaviors and subjecting them to draconian legal sanctions is, at best, overkill.

There is actually a significant amount of recent research to back this up. For instance, numerous studies tell us that sexting has become a relatively common teen behavior, with 15 to 28 percent of adolescent minors having sexted (sending and/or receiving).1 Unsurprisingly, as kids get older the percentage goes up.2 One group of researchers, noting how commonplace teen sexting has become, calls the activity “a new normal part of adolescent sexual development.”3 Other studies tell us that it’s not just traditionally at-risk kids who sext, and that emotionally healthy, high functioning teens are equally likely to consensually engage in this behavior,4 typically without any sort of negative impact until adults—parents, school administrators, police, prosecutors, judges, and the like—get involved.

So even though parents and other adults may be horrified (and maybe even terrified) by teenagers sending and receiving pictures of their and others’ private parts, the kids themselves don’t feel that way. In their minds, sexting is no different than the teenagers of yesteryear finding and passing around a girlie magazine, playing spin the bottle, or fooling around in the back seat of mom’s car. In other words, for today’s teens, sexting is normal, and they really and truly don’t understand why mom and dad make such a fuss about it. In fact, most kids who sext never even think about the fact that their behavior might legally be seen as a form of child pornography for which they could be arrested, convicted, and forced to register as a sex offender.5 They just plain don’t think about sexting as a “bad” or “immoral” or “illegal” behavior. Nor do they worry that sexting will affect future opportunities with school or work.

This is not to say there can’t be consequences from teen sexting. There definitely can be. For instance, kids who say they feel coerced into sexting often feel badly about it afterward,6 just as kids who feel coerced into an aggressive game of spin the bottle (or truth or dare, or whatever) feel badly afterward. In other words, kids don’t explore their sexuality perfectly. They never have. They hurt each other’s feelings, they get embarrassed and feel ashamed, they try for too much all at once, and they even catch STDs and get pregnant. But these things happen with or without smartphones and sexting.

In my previous article on this topic (link is external) I wrote the following:

I suggest that teen sexting issues be treated as normal adolescent behavior unless problems have arisen—compulsivity, coercion, inappropriate sharing of sexts, etc. Beyond that, parents, educators, and other professionals need to develop initiatives that inform teens and pre-teens about what sexting is, how to respond to sexting-related peer pressure, and the potential consequences of sexting—be they legal, reputational, or emotional. As it is with kids and sexuality in general, the best defense is a good offense, meaning adults, especially parents, should actively initiate an ongoing age-appropriate discussion about sex and technology with their children. And the earlier this conversation begins, the better.

In the six months since I initially published that essay on teen sexting, nothing has changed except for the fact that one state, New Mexico, has removed the possibility of legal sanctions from the equation, with other jurisdictions considering similar amendments. The rest is the same. So once again I’ll state that instead of gnashing our teeth and trying to force today’s children into yesterday’s notions of proper behavior, we need to accept and deal with the current digital-age reality. After that, the best thing we can do is to actively educate kids about all aspects of sexuality, including the panoply of digital sexuality (porn, sexting, webcams, hookup apps, etc.) And the sooner in a child’s life this process begins, the better off that child will be.

Still, I wish to congratulate the state of New Mexico on its forward-thinking approach to modern life. Instead of legislating based on fearmongering and ageist judgmentalism, New Mexico has chosen to rely on proven facts, recognizing that we live in an increasingly digital world, and that kids, especially adolescents, are taking full advantage of this by incorporating digital technologies into their very natural and perfectly healthy (though highly imperfect) process of exploring and developing their sexual selves. And no, I am not endorsing or giving a thumbs-up to teen sexting any more than I would endorse or give a thumbs-up to teen pregnancy. I am simply stating that I’m glad at least one jurisdiction is no longer responding to a normal teenaged behavior with harsh legal punishments.

Robert Weiss LCSW, CSAT-S is Senior Vice President of National Clinical Development for Elements Behavioral Health (link is external). In this capacity, he has established and overseen addiction and mental health treatment programs for more than a dozen high-end treatment facilities, including Promises Treatment Centers (link is external) in Malibu and Los Angeles, The Ranch (link is external) in rural Tennessee, and The Right Step (link is external) in Texas. He is also the author (link is external) of several highly regarded books, including Closer Together, Further Apart: The Effect of Technology and the Internet on Parenting, Work, and Relationships (co-written with Dr. Jennifer Schneider). For more information please visit his website, robertweissmsw.com.

1 Temple, J. R., & Choi, H. (2014). Longitudinal association between teen sexting and sexual behavior. Pediatrics, 134(5), e1287-e1292; Temple, J. R., Paul, J. A., van den Berg, P., Le, V. D., McElhany, A., & Temple, B. W. (2012). Teen sexting and its association with sexual behaviors. Archives of pediatrics & adolescent medicine, 166(9), 828-833; Strohmaier, H., Murphy, M., & DeMatteo, D. (2014). Youth Sexting: Prevalence Rates, Driving Motivations, and the Deterrent Effect of Legal Consequences. Sexuality Research and Social Policy, 11(3), 245-255; Strassberg, D. S., McKinnon, R. K., Sustaíta, M. A., & Rullo, J. (2013). Sexting by high school students: An exploratory and descriptive study. Archives of Sexual Behavior, 42(1), 15-21; Rice, E., Rhoades, H., Winetrobe, H., Sanchez, M., Montoya, J., Plant, A., & Kordic, T. (2012). Sexually explicit cell phone messaging associated with sexual risk among adolescents. Pediatrics, 130(4), 667-673; and Fleschler Peskin, M., Markham, C. M., Addy, R. C., Shegog, R., Thiel, M., & Tortolero, S. R. (2013). Prevalence and patterns of sexting among ethnic minority urban high school students. Cyberpsychology, Behavior, and Social Networking, 16(6), 454-459.

2 Benotsch, E. G., Snipes, D. J., Martin, A. M., & Bull, S. S. (2013). Sexting, substance use, and sexual risk behavior in young adults. Journal of Adolescent Health, 52(3), 307-313; Gordon-Messer, D., Bauermeister, J. A., Grodzinski, A., & Zimmerman, M. (2013). Sexting among young adults. Journal of Adolescent Health, 52(3), 301-306; and Samimi, P., & Alderson, K. G. (2014). Sexting among undergraduate students. Computers in Human Behavior, 31, 230-241.

3 Temple, J. R., & Choi, H. (2014). Longitudinal association between teen sexting and sexual behavior. Pediatrics, 134(5), e1287-e1292.

4 Gordon-Messer, D., Bauermeister, J. A., Grodzinski, A., & Zimmerman, M. (2013). Sexting among young adults. Journal of Adolescent Health, 52(3), 301-306; Temple, J. R., Le, V. D., van den Berg, P., Ling, Y., Paul, J. A., & Temple, B. W. (2014). Brief report: Teen sexting and psychosocial health. Journal of adolescence, 37(1), 33-36; and Englander, E. (2013). Bullying and cyberbullying: What every educator needs to know. Harvard Educational Press. 

5 Strohmaier, H., Murphy, M., & DeMatteo, D. (2014). Youth Sexting: Prevalence Rates, Driving Motivations, and the Deterrent Effect of Legal Consequences. Sexuality Research and Social Policy, 11(3), 245-255.

6 Englander, E. (2013). Bullying and cyberbullying: What every educator needs to know. Harvard Educational Press. 

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