The ‘Sexting’ Quagmire: Criminal Justice Responses to Adolescents’ Electronic Transmission of Indecent Images in the UK and the USA
| Author | Nigel Stone |
| DOI | 10.1177/1473225411420533 |
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
Youth Justice
11(3) 266 –281
© The Author(s) 2011
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DOI: 10.1177/1473225411420533
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The ‘Sexting’ Quagmire: Criminal
Justice Responses to Adolescents’
Electronic Transmission of Indecent
Images in the UK and the USA
Nigel Stone
Abstract
Adolescent embrace of electronic communication with peers often involves sharing indecent images of
each other, sometimes with abusive consequences. How should the criminal justice system respond? Use of
conventional child pornography legislation can be inappropriately heavy-handed and draconian. This article
considers recent developments in the United States and considers how this mode of juvenile indiscretion fits
with law, policy and practice in England and Wales.
Keywords
adolescence, free speech, pornography, privacy, sexual offending, youth justice
In March 2011 the New York Times reported the salutary experience of Margarite, a 14
year-old Washington State girl with family problems, described as ‘desperately wanting
to feel noticed and special’, who used her cell phone to photograph herself naked, sending
the full-frontal picture to her new boyfriend, a school classmate, who had already sent
her a bare-chested picture of himself (Hoffman, 2011). Following their break-up soon
afterwards he forwarded Margarite’s picture to another girl, a former friend who had
fallen out with her, who promptly circulated it to all her phone contact peers with the
accompanying message: ‘Ho Alert! If you think this girl is a whore, then text this to all
your friends’. A parent of one of the many children who received the image informed the
school principal who notified the police. The county prosecutor decided against charging
Margarite but the boy, the former friend and another girl aged 13 who had joined in for-
warding the picture were charged with disseminating child pornography. The informal
repercussions for Margarite of this viral exposure proved unsurprisingly fraught, expos-
ing her to notoriety, ostracism, abuse and social isolation.
Corresponding author:
Nigel Stone, School of Social Work and Psychology, Elizabeth Fr y Building, University of East Anglia, Norwich, NR4 7TJ,
UK.
Email: n.stone@uea.ac.uk
420533YJJXXX10.1177/1473225411420533StoneYouth Justice
Article
Stone 267
This episode offers a further illustration of the hazards of what has become widely
known as ‘sexting’. Though not exclusive to adolescents (as evidenced by the recent dis-
grace of a US Congressman1), teenagers’ habitual use of and reliance on digital technol-
ogy as an essential means of peer networking has widely featured sending nude or
semi-nude pictures of themselves or other young persons (or featuring themselves and/or
peers engaging in sexual activity) to friends’ cell phones or posting these photos on social
networking sites. ‘Sexting’ is a somewhat unsatisfactory term for a spectrum of behav-
iours that range from what is intended as the private exchange of images between sexually
intimate youthful partners to ‘sextortion’ – securing images without the informed consent
or even the knowledge of the subject for the purposes of blackmail. This spectrum
includes: attention-seeking self-publicity (whether as a form of high-tech ‘flirting’ or the
inept initiative of a troubled, low status teen); the bravado of intoxicated, disinhibited
youngsters; image circulation with malicious or mischievous intent; and/or reluctant com-
pliance with sustained pressure from someone the subject (usually a girl) does not want to
refuse. Similarly, the nature of transmitted images varies considerably from ‘conven-
tional’ depictions to more explicit pornographic images.
Surveys in the United States have sought to establish the prevalence of ‘sexting’ activ-
ity. For example, Lenhart (2009), focusing on young persons aged 12 to 17, found that
four per cent had sent nude or nearly nude images and 15 per cent had received such
images. Older teens were more likely to have ‘sext’ experience, self-report returns rising
to eight per cent and 30 per cent respectively. A smaller-scale British study (Phippen,
2009) found that 40 per cent of young people surveyed reported that they knew friends
who engaged in ‘sexting’, 27 per cent indicating that ‘sexting happens ‘regularly’ or ‘all
the time’. Unsurprisingly, over half of respondents claimed awareness of instances where
images had been distributed further than the intended recipient, while nearly a quarter
believed that distribution was ‘intended to cause upset’. As regards respondents’ attitudes
towards ‘inappropriate’ images, 40 per cent claimed not to see anything wrong in images
depicting ‘a person topless’.2
In the last decade prosecutors, judges, legislators and legal commentators (e.g. Jolicoeur
and Zedlewski, 2010; Sacco, 2010) in the United States have grappled with the appropri-
ate criminal justice response to the ‘sexting’ phenomenon. To what extent should child
pornography laws designed to protect children from abuse be applied to images created,
possessed and disseminated by children? What constitutional rights or privileges are
engaged by such behaviour? Can the ostensible victim properly be identified also as per-
petrator? Should diversion into alternative intervention initiatives be preferably pursued?
Should convicted young persons be subject to the liabilities of ‘sex offender’ status, asso-
ciated with conviction? Should young perpetrators be held to criminal account on milder,
less drastic offence allegations? Further, what offence allegations aside from child por-
nography may be forthcoming on the basis of ‘sext’ evidence? Though the ambit of con-
cern has extended to jurisdictions including Canada and Australia (see Katzman, 2010;
Svantesson, 2010), the ‘sexting’ controversy has been significantly more muted in the
United Kingdom, with no directly related case authority. This Commentary seeks to
inform the debate from the perspective of relevant law and practice in England and Wales.
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