Legal Updates

Sexting At School: The Increasing Need To Promote Cyber Safety And Good Citizenship

You may have observed the recent increase in news coverage of sexting incidents involving teenagers. For example, in Duxbury, Massachusetts, high school boys collected revealing or nude photos of over 50 female students into a Dropbox account. In Montgomery, Ohio, an 18-year-old girl committed suicide after her ex-boyfriend circulated nude pictures of her to hundreds of other high school girls, many of whom allegedly harassed the victim at school, calling her a “slut” and “whore.” And there have been countless criminal investigations launched into “sexting rings” in states including Virginia, Colorado, Nevada, and Connecticut, some focusing on students as young as 12 and 13 years old.

While stories such as these have been in the national spotlight for years, a recent study shows that teenage sexting is on the rise. The results of the study, published in The Journal of the American Medical Association, were revealing: more than one in four teenagers reported that they had received a sext, and 12 percent of participants in the study reported that they had forwarded a sext without consent. The study further reported that teens were more likely to send and receive sexts with each year they age, a conclusion that “lends credence to the notion that youth sexting may be an emerging, and potentially normal, component of sexual behavior and development.”

Legal Considerations

These examples and trends are a sobering reminder that although sexting may be a spur-of-the-moment action by a teenager with no criminal intent, sexting can quickly spin completely out of the teenager’s control, and is increasingly being construed as a criminal act under the law.

All 50 states have laws criminalizing the production, possession, and distribution of images depicting sexually explicit activities involving a minor. Many states, however, do not have specific laws related to minors sexting. Therefore, a teen who produces, possesses, or distributes nude photos — even a selfie — could technically be charged with a felony count of child pornography. The same is true of students who tape a sexual encounter, even if the encounter (and the taping of it) was consensual.

In response to such concerns, since 2009, roughly half of the states have enacted laws to address youth sexting. While these laws vary from state to state, they primarily serve to reduce the criminal implications of minors engaging in sexting.
Regardless of whether your state has enacted sexting legislation, teenagers are generally unaware that sending nude or sexually explicit photographs of themselves or other minors may subject them to serious legal consequences, the impact of which could endure for many years. Indeed, to the extent there is no sexting law in your state, prosecution for possession or transmission of child pornography can lead to an individual’s being included on the national sex offender list.

Not only does teenage sexting implicate potential child-pornography crimes, but it often falls under states’ bullying protection and prevention laws. Bullying – including cyberbullying and related behaviors – is now squarely addressed by laws in every state and the District of Columbia. In addition to prohibiting various forms of bullying, many of these laws require schools to implement communication plans, training, and preventive education. Further, some states, such as Massachusetts, require specified bullying intervention and prevention plans that must be updated biennially.

Recommendations For Schools

In an effort to help prevent sexting and related bullying claims, and to better respond when such instances arise, we recommend that independent schools take the following measures:
 

• Ensure that their policies clearly define sexting, including prohibiting such conduct by both the sender and the recipient of the explicit material. A school’s policy should outline the potential consequences of engaging in sexting, including possible criminal charges.
• Ensure that their policies and procedures adequately address sexting involving students, employees, volunteers, and all other individuals associated with the school. In particular, a school’s policy should prohibit sending or creating any written message, image, or video that contains explicit representations of, or references to, sexual conduct, sexual excitement, or nudity.
• Develop comprehensive protocols for responding to allegations of sexting, including, for instance, limiting the number of people (including school administrators) who possess copies of the sext, addressing the conduct with the students involved, any bystanders, and their families, and evaluating whether to notify appropriate local law enforcement.
• Audit their policies on related topics, such as electronic communications, acceptable use, sexual abuse, sexual harassment, bullying, harassment, retaliation, and intimidation.
• Educate students, parents, employees, and volunteers regarding the school’s policies and procedures pertaining to electronic communications, including sexting, and the serious consequences that may result from it.

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If you have any questions regarding policies and procedures that may help your school prevent and effectively respond to incidents of sexting, please do not hesitate to contact one of the Firm’s experienced education attorneys.