Is Teen Sexting Really a Crime?

According to Fox News, Copening has now been charged with two counts of second-degree sexual exploitation of a minor and three counts of third-degree sexual exploitation of a minor. If convicted, he faces up to ten years in prison and will be required to register as a sex offender. And since Copening is over 16 years old, per state law, he will be tried as an adult. His girlfriend, who took a plea deal, was sentenced to one year of probation without access to a phone. She will also have to pay a $200 fine and take a class on "making smarter life decisions."

So to recap: A teen has been charged with second-degree sexual exploitation of a minor, for the act of sexting with his girlfriend, and with third-degree sexual exploitation of a minor for possessing nude pictures of…himself? Does this mean that every high school teen is a potential sex offender?

North Carolina's statute for sexual exploitation of minors is obviously meant to protect children from predatory adults, but the law hasn't been updated to account for the ways teens explore their sexuality in the digital age. Under the law, a third-degree offense—which punishes those who "possess material that contains a visual representation of a minor engaging in sexual activity"—does not distinguish between consensual sexting among young adults and child pornography. The same can be said of state laws across the US.

Writing in the University of Michigan's Journal of Law Reform, Sarah Thompson explains that "the practice [of sexting] overlaps with the production, distribution, and possession of child pornography that is banned by both state and federal law. Due to the overlap, minors have been prosecuted under child pornography statutes for producing or sending images of themselves or other minors." Because of this unforseen use of the law, she argues that "minors should be a protected class against which child pornography charges cannot be brought. The solution to the sexting problem does not lie in prosecution. Instead, states should incorporate sexting education into state sexual education and health curricula. Education will help ensure that minors are aware of the risks associated with sexting, without being harmed under a statute that is meant to protect them."

Cases like Copening's have happened before, yet laws around the country remain unchanged. In the summer of 2010, eight students at a Pennsylvania high school, whose ages ranged from 13 to 17, were convicted of child pornography charges for distributing images of themselves to each other. While it's probably unwise, at the age of 13, to share illicit images of yourself that could end up anywhere, the sentence was an unduly harsh way to "draw these teenagers' attention to the wrongness of their acts," as the county's district attorney put it.

The moral impulse to shame or criminalize sexting continues to prevail, but the act of sexting is, ostensibly, a natural sexual behavior. Last year, the Washington Post reported findings from a study published in Pediatrics that found that one in four teens have, indeed, sexted. The paper went as far as to proclaim sexting "the new first base."

In The Child as Victim and Perpetrator: Laws Punishing Juvenile "Sexting" attorney Joanna Berry advises against the legal system involving itself in sexting at all. "Courts could treat sexting in much the same way that some jurisdictions handle sex between minors—as protected conduct under a federal or state right to privacy," she explains. "Legislatures should move beyond visceral reactions to teenage nudity and help teenagers understand the repercussions of their actions. States need to protect juveniles from prosecution in criminal court." Ultimately, she finds, branding a promising young teenager as a sex offender for life is far more harmful than a consensually sent nude.