from the how-about-'toss-it-back-to-the-parents-and-let-them-handle-it?' dept
A smallish town in Colorado is home to the teen sexting apocalypse. Something that first appeared to be limited to the football team now apparently involves almost half of Canon City High School's student body.
Superintendent of Canon City High School, George Welsh estimates that half the school is involved. That's about 500 students based on the initial stages of the investigation. Some eighth graders may also be involved.That estimate given by Welsh has since been revised down to "certainly over 100 different kids," which is still a rather large number of students to suspend and (possibly) bring criminal charges against. Yet that's what Welsh feels should happen.
Right now their punishments are undecided but Welsh said they will likely be suspended and face criminal charges. Because posting nude photos is a class three felony, the students involved could be placed on the sex offender registry.The Canon City Sex Offenders. Catchy, but also horrific and bound to be the least popular choice for new school mascot. Fortunately, the district attorney doesn't believe the path should lead through the local criminal court.
“Consenting adults can do this to their hearts’ content,” said Thom LeDoux, the district attorney, but “if the subject is under the age of 18, that’s a problem.”This is a far more rational response than we're used to, although LeDoux reserving the right to "use discretion" suggests at least a few of these hundreds of students may end up on the sex offender registry. Especially with this added remark.
He added that he was not interested in arresting hundreds of children and would “use discretion” if he decided to file charges.
Mr. LeDoux, the district attorney, said the investigation would look into whether any adults were involved, whether children were bullied into participating, and whether any illegal sexual contact occurred.As LeDoux pointed out, if everyone was over 18, all of this would be legal. But the ages of those involved invokes statutes ill-equipped to handle this sort of sexual activity by minors. Under Colorado law, any person under the age of 18 is considered a "child" for the sake of child pornography prosecutions. This means the only thing LeDoux has to do is find a few "adults" within the student body.
The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child's right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.The relevant portions of the statute would treat sexting as the production and distribution of child pornograpy. If it will be used to charge teens with sexually exploiting themselves (because they cannot give informed consent, even when photographing themselves) remains to be seen. The law, like those in other states, offers no guidance on how to proceed if the creators and recipients of the images are under the age of 18. This is where the prosecutorial discretion comes into play. A few convenient 18-year-olds would make for useful scapegoats should the community unite behind the move to prosecute its way out of this "embarassment."
Court decisions clarifying Colorado's statutes add even more bad news.
Evidence that a person has knowingly received prohibited material in an e-mail could be accepted as proof that the person knowingly possessed the material, because a person who knowingly receives an e-mail is aware of the nature of its content and has immediate and knowing dominion or control over it. Fabiano v. Armstrong, 141 P.3d 907 (Colo. App. 2006).If read directly, this means students who received unsolicited photos from other students could be found guilty of possession. Even deleting the unwanted photos is of limited defensive use.
The presence of digital images in an internet cache can constitute evidence of a prior act of possession. There was enough evidence that the jury could infer that the defendant knowingly viewed the images in the internet cache. People v. Marsh, -- P.3d -- (Colo. App. 2011).If the DA decides some charges are warranted, these will be the laws used and they cannot be adapted to fit this situation without a significant amount of imagination and collateral damage.
For now, though, there's been far more restraint exercised than has been exhibited by others in the same situation. Unfortunately, I get the feeling this restraint is more prompted by the sheer scale of the situation, rather than a realization that child porn/sexual assault laws were never written to address this sort of thing. In cases where the sexting has only involved a handful of individuals, school administration and law enforcement have moved far more swiftly and reacted more harshly.