Even a consensual exchange of nude photos between teenagers can be prosecuted under child pornography laws, making it essential for parents to discuss the risks with their children.
Note: This article originally appeared in The Wall Street Journal online Nov. 19, 2020 and in print Nov. 21, 2020.
Ryan Smith was more perplexed than concerned when the principal of his son’s middle school asked him to come in for a meeting in 2016. His 13-year-old son Connor had never been in any kind of trouble. When Mr. Smith arrived at the school in Bucks County, Pa., he was shocked to see Connor dissolve in tears as the principal explained what had happened. (The names of Mr. Smith and his son have been changed to protect their privacy.)
The school had learned that Connor was in possession of a photo of a naked woman. The “woman” turned out to be a 12-year-old girl in his class who had suggested that they send each other naked pictures. She assumed that since they would have “the goods” on each other, neither would tell anyone else about the pictures.
But in a perfectly foreseeable way, Connor held the photo up on his phone so that all of his friends could look, and word spread. When the matter came to the principal’s attention, he made two phone calls: one to Connor’s father and one to the police, whom he was obligated to notify in matters involving child pornography.
Usually we think of child pornographers as adults who take advantage of children, but in fact, they are often adolescents themselves.
Child pornography is defined by the U.S. Department of Justice as any sexually explicit visual depiction involving a person under 18. It is a felony under federal and state law to produce, distribute, receive or possess such images.
Usually we think of child pornographers as adults who take advantage of children, but in fact, they are often adolescents themselves. That’s because child pornography crimes are based on the age of the subject, regardless of the age or identity of the person who takes, distributes, receives or possesses it. As a result, a teenager may be guilty of child pornography crimes if they possess an image sent by a classmate their own age, or if they take or send naked photos of themselves.
“When I heard the principal say the words ‘child pornography,’” Mr. Smith later said, “I panicked. I thought: My son just turned 13, and his life is going to be changed forever. Will he have to register as a sex offender? Is it going to prevent him from getting into college? Will my neighbors know? My mind started spiraling out of control.”
Mr. Smith is lucky that he lives in Pennsylvania, one of approximately 25 states that have reduced penalties for child pornography crimes when they involve consensual acts between minors. Even in those states, however, investigations are conducted by the police and may lead to criminal charges. In Ohio in 2018, a 13-year-old boy and 12-year old girl were charged with felonies in connection with a sexually-explicit video; they pled guilty to misdemeanors and were sentenced to community service and internet safety education. In Iowa the same year, seven students, including a 13-year-old, faced felony charges for sexting. They were fortunate that the judge didn’t require their names to be listed on the sex-offender registry.
According to a 2019 study by the parenting app Jiminy, 60% of sexting—sending sexually explicit photos or messages via cell phones—by children ages 10-17 is mutual. The study, which examined 54 million texts, also found that young people are sexting earlier than ever before. An estimated one in ten are exposed to a sexually explicit message by age 8. By age 13, 24% of children have been asked to send nude photos or have requested them from others. That means nearly a quarter of all 13-year-olds have been asked to participate in what the law considers child pornography. According to a 2019 article in the Journal of the American Academy of Pediatrics, the frequency of sexting is the same for boys and girls.
It’s clear from these statistics that parents must tackle the topic of sexting very early. That presents a conundrum for those who don’t want to traumatize a young child or put ideas into their head.
Parents should ask children to consider whether they would want the whole school to see the picture they are thinking of sending.
According to Dr. Cherie Gerstadt, a specialist in child and adolescent psychology at the Children’s Hospital of Philadelphia, there are two age-appropriate conversations to have with very young children about sexting. One is a discussion of body boundaries—the idea that your body belongs to you and you have private parts that others should not touch or photograph. The second is to explain that once a child sends a photo, it becomes public. Parents should ask children to consider whether they would want the whole school to see the picture they are thinking of sending. As children age, the conversations should become more explicit about the harm of sending nude photos.
Dr. Gerstadt points out that sending a naked picture is often part of a process. “It rarely starts with a person saying to a child: Send me a naked picture. Instead, they’ll get a request to send a picture of themselves in a bathing suit or bra, which they’ll do. But then if they’re asked to do something that makes them uncomfortable, they’re told that if they don’t, the person will release the bra photo so they feel they have to send the next photo or they’ll get in trouble or be humiliated.”
Parents should make sure their children know that the lines of communication will remain open no matter what.
Even as they discuss the seriousness of sending inappropriate photos, parents should make sure their children know that the lines of communication will remain open no matter what. If a child fears that she has made a mistake, she should feel safe coming to a parent to talk about it. The fallout from sexting can be devastating, and parents who are concerned about their child’s mental health in the wake of an incident should seek professional advice about dealing with it.
Mr. Smith, who had always considered himself an involved parent, learned something else from his ordeal: Parents who search their children’s phones often miss harmless-looking apps that are designed to hide pictures. The Calculator+ app, for example, has an icon that looks like a calculator, but it is designed, according to its tagline in the Apple app store, to “hide your secret.” Parents who look through a child’s phone and are surprised to find a password-protected app should ask why it’s locked and what’s stored there.
Mr. Smith considers himself lucky. The police found no additional photos on Connor’s phone that he hadn’t already admitted were there. The investigation was sealed, and no charges were filed after Connor signed up for a state-run internet safety course. The incident will not appear on a background check. The episode still haunts him, though. “It changed me,” Mr. Smith said. “It will take a long time for him to regain my trust completely. And as long as I live I will never forget the horror of realizing I hadn’t taught him—because I didn’t know—that what he was doing was a crime.”
—Ms. Feldman is general counsel of The Judge Group, an international professional services firm.