Proponents of a new bill designed to combat juvenile sexting, including a University of Colorado Denver professor who literally wrote the book on the subject, believe the measure lays out proportional penalties for those who deserve them without punishing victims. In addition, the legislation allows individuals who unwittingly receive a photo that could technically constitute child pornography a way to avoid sanction, but only if they get rid of it in a finite amount of time rather than hanging on to the image.
Raana Simmons, director of policy for the Colorado Coalition Against Sexual Assault, one of 24 different organizations that contributed to House Bill 17-1302, says the final product creates "an appropriate measure of responsibility for abusive sexters but protects victims and doesn't criminalize consent."
The legislation will be among the topics at Kick-off @ the Capitol, an event being staged this afternoon in conjunction with April's status as sexual assault awareness month.
The balance struck by the bill has been sought for years by Amy Hasinoff, a CU Denver communications professor and the author of Sexting Panic, a book that casts a critical gaze on the legal and social approaches to dealing with the growing number of young people who sext. In a 2015 Westword post about sexting and its roots in slut-shaming, Hasinoff argued that many current laws cause more harm than good.
From a criminal perspective, Hasinoff told us, "sexting can be treated as child pornography, which is a really harsh crime to be charged with, and the penalties are huge. And it seems illogical to me that the child-pornography laws don't make a distinction about whether the sexting was consensual or not. You can be sending a sext to your partner with consent and be charged with child pornography — and then, if your partner sends it to friends or so forth, that person can be charged with child pornography, too. But in the first case, the partner is presumably happy to get that image, and in the second case, the person is maliciously violating the first person's privacy."
The difference in these intentions is key, Hasinoff maintained. "Laws in a lot of states essentially say that whether you sext with consent or with malicious intent, we're going to give you the same penalty. And studies have shown that about 30 percent of teenagers sext. So we're talking about something that's essentially normal for about a third of teens and turning it into child pornography."
The challenges of dealing with teen sexting were underscored later that year by a sexting scandal at Canon City High School.
In November 2015, as we reported, a community announcement credited to Canon City School District Superintendent George Welsh (who also consulted on HB 17-1302) revealed that "a number of our students have engaged in behavior where they take and pass along pictures of themselves that expose private parts of their bodies or their undergarments."
Participants were said to have included members of the CCHS football team, whose final game for 2015 was canceled, reportedly because there might not have been enough players who definitely weren't involved to field a full squad.
In the beginning, threats of criminal prosecution were floated in regard to any sexting participants — and there were a lot of them. During a December 2015 press conference, District attorney Thom LeDoux revealed that 351 photos featuring at least 106 identified students were found on three confiscated phones.
LeDoux noted that some of the students referred to the photos as "Pokemon cards" because of the way they were being traded.
However, LeDoux added that the investigation failed to reveal aggravating factors that would have led to criminal charges. Those presumably included coercion or the sharing of photos in ways meant to harm or belittle the teens pictured.
As such, suspects were eventually given a letter from the DA stressing the seriousness of the matter and warning them against taking part in sexting again.
According to CCASA's Simmons, the Canon City High brouhaha helped inspire juvenile-sexting legislation during the 2016 session. That bill, HB 16-1058, "introduced a lower-level misdemeanor for the crime of sexting," she recalls, "which at first blush seemed like a good idea. Currently in Colorado, the only tool district attorneys have to charge in sexting is felony exploitation of a child, which brings with it lifetime sex-offender registration, sex-offender treatment and sex-offender management provisions."
For example, she continues, those convicted "can't be around other children — and if you're going to school, that becomes a complex situation. But reading through 1058, we believed it cast a net so wide that it captured more than just criminal behavior. It also captured consensual behavior, and ultimately, that had the ability to punish victims of sexting."
Eventually, HB 16-1058 was defeated — but concerns about teen sexting didn't go away. That's why CCASA, in conjunction with the Colorado Coalition Against Domestic Violence, the Colorado Criminal Defense Bar, the American Civil Liberties Union and many other groups went back to the drawing board and came up with HB 17-1302.
Simmons thinks the new bill succeeds where its predecessor failed, in part because "it narrowly defines the actors within a sexting incident. A juvenile who distributes a sexually explicit image of another juvenile would be one actor, the depicted juvenile would be the victim, and there are also unsolicited possessors of the image."
She breaks down the distinctions like so: "Say I'm a juvenile who has a jerk friend who sends me an image of someone. I didn't ask for the image, but all of a sudden, I'm in possession of it because my jerk friend sent it to me. At that point, you have to think: Does that kid deserve criminal charges? But also, does the privacy violation feel any less injurious to the victim?"
The bill deals with this seeming contradiction by creating what Simmons describes as "a 72-hour window. If juveniles get rid of an unsolicited, sexually explicit image in that amount of time, or turns it in to authorities, they would not be charged. But if they keep it longer than 72 hours and it's discovered, they would be charged with a petty offense — like a ticket."
Meanwhile, HB 17-1302 creates a new Class 2 misdemeanor for the original sender of the image — a lower-level offense that may be more appropriate than the current felony statute. At the same time, Simmons stresses that "we strongly believe consent is not criminal. Sexting is sexual activity, and in Colorado, sexual activity between a seventeen-year-old and another seventeen-year-old is considered legal; no crime has been committed. So we're applying that same framework to consensual sexting, so that we're not criminalizing consent."
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The new bill is scheduled to be heard by the House judiciary committee on April 11, and Simmons is optimistic about its chances, even though the current legislative session is already winding down. The measure could also receive a boost from Kick-off @ the Capitol, which gets under way at 12:30 p.m. today, April 4, at the old Supreme Court chambers at the State Capitol. CCASA director of programs Agueda Morgan says festivities will include member spotlights, during which "representatives of one or two agencies can talk about the outstanding work they're doing around the state;" a Native American-themed performance segment; a panel discussion called "From Inception to Intersections" about the history of the fight against sexual violence and where the movement is headed; and a media excellence award for Univision Colorado's Priscilla Cabral-Pérez.
Also receiving awards are Representative Dominique Jackson and Senator John Cooke, who co-sponsored a bill allowing victims of sexual assault or stalking to legally break their lease under certain circumstances. Jackson told us about the measure for our February post "Trying to Protect Stalking and Sex-Assault Victims From Landlord Abuse," and it appears on its way to becoming law; Simmons says it's passed both houses of the legislature and has only to get past some minor language tweaks before heading to the desk of Governor John Hickenlooper.
Simmons hopes the juvenile texting measure will follow a similar path. "The motivation behind victims'-rights organizations getting involved in this was hearing from victims who said they were afraid to go to law enforcement or tell their parents because they didn't want to be charged with sending a sexually explicit image of themselves in the first place. So we're advocating for policies designed to protect victims and to not have a chilling effect on victims reporting sexual crimes or seeking support services. It's a very nuanced topic, and it requires a nuanced policy."
Click to read HB 17-1302.