Teens Who Take Nude Photos Of Themselves Can Still Be Treated As Sex Offenders

In many states, they don't have to share the photo to break the law.
Jiangang Wang via Getty Images

WASHINGTON -- A teenage boy in North Carolina might have to register as a sex offender if he's convicted of keeping nude photos he took of himself on his phone, as well as a picture of his girlfriend. His case has drawn national scrutiny, but North Carolina's controversial law isn't unique. In many states, prosecutors can technically slam teenagers who snap naked selfies with child porn-related charges -- regardless if the photos were shared or not.

While at least 20 states have updated their laws since 2009 to address teen sexting, in others, images teens produce are treated like child pornography, with harsh penalties for possession.

States require people convicted of various sex-related offenses to publicly register as sex offenders. They don't always make exceptions for kids, even if their cases are adjudicated in juvenile court. Almost 40 states have laws that require at least some juveniles found to have committed sex offenses to register, according to Nicole Pittman, a founder of the Center on Youth Registration Reform at Impact Justice, a research center on the criminal justice system.

Clearly, most prosecutors aren't going to go after a teen over a risqué selfie of him- or herself. "It simply would not be practical, both legally and financially, for the government," said Dmitriy Shakhnevich, a criminal defense attorney in New York.

Marsha Levick, deputy director and chief counsel at the Juvenile Law Center, said that youth are unlikely to get in trouble for possessing nude selfies. "Child pornography typically requires possessing the nude photo for sexual purposes. Possessing a nude photo of yourself does not really fit that definition (or concern)," she told The Huffington Post. "Child pornography is aimed at the sexual exploitation of children -- that is simply not present here."

But legal experts say outdated laws, which designate a teen both victim and perpetrator, are still problematic. Marina Medvin, a criminal defense lawyer in Virginia -- which does not carve out exemptions for youth -- sees this as a free speech issue, she said.

"These kids are legally allowed to engage in sexual activity, but then they are precluded from photographing or depicting such an act," she said.

Between 2008 and 2009, cops handled an estimated 3,477 cases of youth-produced sexual images, according to a national survey of law enforcement agencies taken by researchers at the University of New Hampshire. Two-thirds of the cases involved an aggravating circumstance beyond creating and sending the image -- for example, an adult was involved or the teen engaged in non-consensual behavior. Sex offender registration "applied in only a few unusual cases," the researchers noted.

Medvin said she has not seen a case where a prosecutor went after a kid for possessing nude content of him- or herself, but she has seen law enforcement use it as a pretext for an investigation. "They ask the parents nicely, 'Hey, can I have your kids' phone?'" she said.

But Crystal Nosal, a spokeswoman for the Alexandria Police Department in Virginia, said that generally, police are not going to investigate teenagers for having a pictures of themselves on their phones. "Obviously that changes if it's been sent," she said.

No search warrant appears to have been issued for the boy's phone in the North Carolina case, the Fayetteville Observer reported. Law enforcement asked the boy's mother for the phone as part of a statutory rape investigation in which the boy was not a suspect, Sean Swain, a sergeant with the Cumberland County Sheriff's Department, told Fox News.

"Of the five charges he faces, four of them are for taking and possessing nude photos of himself on his own phone -- the final charge is for possessing one nude photo his girlfriend took for him," Ars Technica reported.

States that have carved out sexting from child pornography laws aim to allow youths like the North Carolina boy to avoid traditional prosecution by taking part in classes or other alternative approaches to punishment. But under these newer laws, teens can still get in some trouble for possessing images of themselves. In Georgia, teen sexting that does not involve distribution -- in other words, just taking a nude selfie -- is a misdemeanor.

"No kid should be arrested for it," said Meg Strickler, a criminal defense attorney in Georgia. "Our criminal justice system is already overwhelmed, let’s not add to it with arrests on teen sexting where a criminal arrest record will follow them forever."

A handful of states, including Arkansas and Texas, say that teenagers who create images of themselves and don't share them can claim that as a defense. But legislatures struggle with drawing the line in morality policing. Some states, for example, exempt juveniles who take steps to destroy the image, but it's not clear how fast the image has to be erased.

As lawmakers and prosecutors continue to grapple with the issue, there is concern that some kids could have their futures permanently damaged for engaging in typical teenage behavior.

"Child pornography laws were intended strictly to protect children, but they're harming children," said Pittman, of the Center on Youth Registration Reform. "That's why the North Carolina case is so egregious."

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