Teens Involved In “Experimental” Sexting Don’t Often Face Prosecution

Prosecutors have figured out that "it’s not a great use of resources,”

Sep 03, 2015 at 6:31 PM ET

Making headlines on Wednesday is yet another “sexting” case where teenagers are being charged with sexually abusing themselves. These stories of high-school sweethearts labeled as sex offenders make you wonder, “Has the world gone entirely mad?” Well, it might be the case that the Cumberland County Sheriff’s Office, which brought the charges in this case, has gone mad—but studies show that criminal prosecutions like these are actually a rarity when it comes to teen sexting.

The case at hand: A 16-year-old girl in Fayettville, North Carolina was charged earlier this year with two felony counts of sexual exploitation of a minor—herself. Last fall, she sent a naked selfie to her same-age boyfriend. Police found out about the photo in an unrelated investigation—the photo had not been sent beyond the two teens—and she and her 16-year-old boyfriend were arrested and charged as adults. He was given five counts of sexual exploitation of a minor—two in the second-degree, three in the third-degree—for possessing the image of his girlfriend, along with naked selfies of himself.

The girl—who we are not naming, because apparently she’s her own underage abuse victim!—pleaded guilty in July to a misdemeanor charge, resulting in a year of probation, after which the charge will be dropped. Her boyfriend, who we are also keeping anonymous, still faces potential jail time and registration as a sex offender.

David Finkelhor, director of the Crimes Against Children Research Center, says this is an extreme prosecutorial response. “In general, we find that arrests and prosecution are not all that likely when there aren’t what we call aggravating circumstances,” he says. An aggravating circumstance would be a teen sexting with an adult, for example, or a teen coercing another teen into sending a naked photo. The Fayettville case is what Finkelhor calls “experimental sexting,” where it’s just part of a romantic relationship.

Finkelhor has data to back this up. In a 2013 study, he found that 36 percent of state prosecutors who had handled a teen sexting case had ever filed charges. When charges were filed, most were felonies for producing child pornography. But most prosecutors said they would require “some type of additional offense, such as harass‐ment, unruly behavior, or stalking, in order to file charges and that the circumstance would have to move beyond the boyfriend/girlfriend situation,” as the study put it.

In a 2012 study published in the journal Pediatrics, Finkelhor surveyed thousands of law enforcement agencies across the United States about sexting cases involving “youth-produced sexual images.” Over the course of two years, the responding agencies had handled 3,477 of such cases. Two-thirds of these cases were “aggravated” (of which 36 percent involved an adult and 31 percent featured non-consensual or abusive behavior on the part of a minor). An arrest happened in 62 percent of cases involving adults, 36 percent of those involving non-consensual minors-only sexting and 18 percent of “experimental” ones. Sex offender registration was required in only “a few unusual cases.”

“There are some arrests and prosecutions, but I think that for the most part police and prosecutors are handling these through diversion and talking to the kids and their families,” says Filkelhor. “Where you get a prosecution, you have circumstances like a parent who really wants someone to be punished, who is kind of out for blood, or you have a prosecutor who sees this as an opportunity to show kids that they really need to be careful…by making an example.”

For the most part, though, Finkelhor says that “prosecutors have gotten that it’s not a great use of resources” to pursue consensual sexting between teens.