When Dating a Teen Is Legal, But Sexting with Her Is Not

The legal age of consent varies from state to state, but all such laws are designed to protect kids. In Texas, for example, the age of consent is 17 years old, making the relationship between 51-year-old Aldo Leiva and an unnamed 17-year-old high school student legal in that state. But the range of ages in consent laws does not necessarily sync with other legislation that is designed to keep children from being sexually exploited. That's why, according to Courthouse News, Leiva was charged with possession of child pornography as the result of receiving topless photos of his teenage girlfriend.

This case highlights a contradiction in the law and the general lack of consistency in such legislation: It is presumably legal for 51-year-old Leiva to have sex with the 17-year-old because she is considered capable of consenting sexually, yet it is illegal for her to share sexual photographs of herself with him because sexual images of young people under 18 years old are considered child pornography.

Leiva is reported to have been the young woman's math tutor at her high school—a fact that raises other questions about the ethics of student-teacher relationships—but, nonetheless, their relationship is legal. David Finkelhor is the director of the Crimes Against Children Research Center at the University of New Hampshire. In an interview with Broadly, Finkelhor explained that this is a common scenario. Most states have conflicting age of consent and child pornography laws. "Age of consent laws tend to allow consent after age 16, but child pornography laws still criminalize images of anyone under 18," Finkelhor clarified.

He pointed out that these contradictions can sometimes be used against the youths themselves. Young people across the country have technically violated laws prohibiting the production, distribution, and possession of child pornography because they sexted with their high school classmates. Some have even been charged. "This kind of prosecution is uncommon," Finkelhor noted.

For youths on the cusp of adulthood, sometimes states will set a range of ages (often three to five years' difference) within which they can legally consent to sex—so, for instance, a 15-year-old would be able to consent to sex with an 18-year-old even in a state where the age of consent is 18. "But these are hard issues for legislatures and policy makers to work through," Finkelhor says, adding that in cases such as the one with Leiva and his teenage girlfriend, it is even more difficult. "Unfortunately, there is not a lot of research about the outcomes of these consensual relationships with wide age differentials, but they don't tend to turn into lasting partnerships, and they also have a high rate of unwanted pregnancy," he says.

Katherine Franke is the director of the Center for Gender & Sexuality Law at Columbia Law School. In an interview with Broadly, she reiterated the fact that US law is "riddled with contradictions, especially with laws regulating sex and sexuality." According to Franke, in many states—Texas included—consensual sex with a minor is considered statutory rape "unless the minor is the person's spouse." Say a girl is 13 years old and her boyfriend is 21. If he had consensual sex with her, it would be considered statutory rape—but, if they got married, it wouldn't be.

This is one explanation for the inconsistency between laws that govern sexual relations and those that govern "visual depictions of sexuality," Franke says: "An adult can 'legitimize' sex with a minor by marrying them. Not so with pornography—you cannot legitimize pornography by marrying a person, no matter their age."

As for Leiva, according to Courthouse News, he and his girlfriend want to maintain their relationship despite the fact he faces up to 20 years in prison for possessing and eliciting her sexts. The young woman "attempted to minimize their relationship; however, she did admit to receiving and sending nude photos through an app on their phones," Courthouse News reports.

"The goal of trying to keep sexual images of minors, including 17-year-olds, out of the porn stream seems very reasonable," Finkelhor says. However, he wonders if it wouldn't be wise to edit the law to allow for such images "when they are voluntarily sent and not used in a way that offends the person being imaged."