December 15, 2009

Members of the Virginia State Crime Commission say that the problem with trying to create a legal remedy to make sure that kids don't get charged for more serious crimes for sexting, is doing so without creating a loophole for pedophiles and sex offenders.

It's common to see teens talking on their cell phones and sending text messages. But it's another common teenage practice, sexting, which has been raising eyebrows.

Teens sending sexually explicit images to each other. It's illegal, Tuesday the state crime commission met in Richmond to discuss whether Virginia law could be changed so that kids sharing naked pictures aren't treated as adult sex offenders.

"A girlfriend sending a picture of herself to her boyfriend, maybe she needs to be fussed at, maybe they need to alert the schools and their parents, but they don't need to create a felony for her and put her on the sex offender registry," said Delegate Rob Bell, R-58th District.

Bell says it's an issue the commission has been wrestling with for about a year, ultimately deciding not to recommend any changes to the law. They say they haven't been able to find a way to do so without creating a loophole for sex offenders. He says solving the problem has to start by educating teens about their actions.

"Much of this is an educational issue. It's a young girl who sends a message with a picture of herself to her boyfriend. The moment she sends it, it's not just to her boyfriend, it's whoever her boyfriend decides to send it to, if somebody gets a hold of his phone and they send it on, it's entered the internet at that point," said Bell.

Albemarle County and Charlottesville police say it's a problem school officers have not had to deal with, but say when dealing with kids, discretion is usually used when deciding whether to press charges.

"It really depends on the incident, it depends on what the kids think, what the parents think as to whether something may actually go into the criminal justice system or be handled within the schools or between the parents," said Lieutenant Gary Pleasants with Charlottesville Police.

The State Department of Education says sexting has become a widespread and complex issue. They're hoping to help schools understand the impact of sexting and the legal consequences.

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RICHMOND, Va. (AP) - Members of the Virginia State Crime
Commission refused Tuesday to recommend legislation concerning
sexting, but the issue is likely to come before lawmakers next
month.

Currently, it's up to commonwealth's attorneys whether to charge
teens and young adults who send sexually explicit pictures or
videos through text messages or e-mails with possessing or
transmitting child pornography. Several have done so, and some
lawmakers say there should be laws to ensure the issue is dealt
with uniformly across the state.

But others, like Del. David Albo, R-Fairfax, said taking the
discretion away from the state's 120 elected prosecutors could
result in a teen being punished for a stupid mistake while allowing
a serious predator to receive a mere slap on the wrist. Albo called
possible legislation "a total minefield."

"We are dancing on very, very scary territory here if you're
talking about changing the law," he said.

As in other states, Virginia lawmakers are torn between
deterring children and teens from sending naughty pictures of
themselves or others and dolling out harsh punishments for what is
often a voluntary act between hormone-crazed teens.

A recent Associated Press-MTV poll found that more than a
quarter of young people have been involved in some sort of sexting.
In the survey of 1,247 teenagers and adults ages 14-24 conducted
Sept. 11-22, 10 percent said they had sent naked pictures of
themselves on their cell phone or online. Seventeen percent of
those who received naked pictures said they passed them along to
someone else, often to more than one person.

This year, lawmakers in at least 11 states introduced
legislation aimed at sexting. Six states passed laws, according to
the National Conference of State Legislatures.

Crime Commission staff offered three options: leave the law
unchanged, with prosecutors determining whether to press charges;
make sexting a misdemeanor; or exempt juvenile sexting from child
pornography laws.

Currently, those found guilty of possessing or distributing
child pornography could face up to 30 years in prison, although
that's not likely in sexting cases. If older than 13, they could
end up on the sex offender registry list.

Mary Devoy, of Reform Sex Offender Laws of Virginia, warned that
requiring young people convicted of sexting to register as sex
offenders undermines the sex offender registry.

"Today's sexting is what the 1970s and '80s was with Polaroid
cameras," she said. "Yes, the world wide web has changed the
permanence of these photos and videos, but the stigma of sex
offender for a lifetime is too extreme of a punishment for a stupid
teenage mistake."

She advocated for a new law so that prosecutors wouldn't have
such broad discretion.

While the commission is made up of several legislators, it only
studies and recommends legislation. Lawmakers are not bound by its
actions.

Robie Ingram, a staff attorney with the division of legislative
services, said two legislators have asked that bills concerning
sexting be drafted for the 2010 General Assembly session, which
begins Jan. 13. Those bills are confidential.

The crime commission's refusal to endorse legislation could
persuade the lawmakers to hold off on filing the bills.

Sen. Janet Howell, D-Fairfax County, said time would be better
spent educating young people about the possible repercussions than
prosecuting them. She plans to write a letter to the state
Department of Education asking that it inform students and parents
about the dangers of sexting.

"A very large percentage of the young people in the country
don't understand the seriousness of what they're doing or the
ramifications," she said. "We should have the school systems
putting out information and not locking up" students.