Lawmakers say teens sexting does not equal child porn

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OLYMPIA — Today if a teenager is found with a sexually explicit image of another teenager, they could face child pornography charges.

That’s because there is little legal distinction between a fully-grown adult with a laptop full of child pornography and a teenager exchanging photos with their romantic partner.

State lawmakers are looking to change that. Currently, a minor could face a class B felony conviction and be forced to register as a sex offender. Under the Senate Bill 6566, if a minor possesses a sexually explicit photo of a minor over the age of 12, the charge would be lowered to a misdemeanor. Any illegal photos would also be forfeited to the court for destruction.

Elizabeth Smith, legislative director for the ACLU of Washington, said the proposal would bring the intent of the law in line with the realities of modern technology. As cellphones have made their way into the lives of almost every teenager, Smith said, 20 percent or more of adolescents “sext,” exchanging explicit photos of themselves, most often with a significant other.

Child pornography laws, first passed in 1984, were intended to prevent the sexual exploitation of children, Smith said, not to incarcerate teenagers guilty of commonplace problematic behavior. If authorities wanted to stop the damage caused by minors swapping sexually explicit images of themselves, the focus should be on education and harm reduction, Smith said.

Bradley Drury, a defense attorney in Thurston County, has represented several children who were charged with manufacturing child pornography.

One such client, a 15-year-old girl, took topless photos of herself with a friend, Drury said. The two never sent the photos to anyone else, but showed them on their phones to some classmates, and word got back to school authorities that the photos existed.

A police officer confiscated the girls’ phones and went through their photos, Drury said. Prosecutors used the threat of sex offense charges to steer the girls to a guilty plea for a lesser crime, a charge which Drury called “a legal fiction.”

“A law that was designed to protect children was being turned against them to coerce a plea to a charge that they were innocent of,” Drury said.

The charges were eventually dropped, Drury said, because the girls had no prior criminal history. Any criminal history, even minor, could have led to a drastically different outcome, Drury said.

Todd Dowell, a member and representative of the Washington Association of Prosecuting Attorneys, said that the bill was 10 years overdue. The old laws were written before the proliferation of smartphones, Dowell said, and while adolescent behavior had not changed much in the last decade, they now have far more powerful tools to make mistakes with. The solution was education, not a sex offense, Dowell said.

“These pictures shouldn’t ruin a kid’s life,” Dowell said.

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