Texas legislators try to make more lenient law for sexting

By Tara Haelle
Reporting Texas

Passing notes was once among the most common ways teenagers flirted with each other. But these days, nothing quite says “I really LIKE you” like a teen sending her hopeful beau a cellphone text message containing a lurid photo of herself.

And while passing notes in class might be breaking school rules, texting nude photos of a minor — even one’s self — might be committing a felony.

Because the law has not kept up with technology, the only way so-called teen “sexting”— the practice of exchanging sexually explicit images and messages via cellphone or online messaging — can currently be prosecuted in Texas is under a third-degree felony law for possessing and trafficking child pornography.

That means up to a $10,000 fine, two to 10 years in prison and a requirement to register as a sex offender — if the minor is prosecuted.

And therein lies the rub. Because the legal consequences are so harsh, no minor in Texas has been prosecuted for sexting.

State Sen. Kirk Watson (D-Austin) aims to change those consequences this legislative session to give prosecutors more options in dealing with minors. Watson worked with Attorney General Greg Abbott to draft legislation that would amend the penal code to make sexting a Class A misdemeanor for juveniles, carrying a punishment of up to one year in county jail and a $4,000 fine, though first offenders would likely receive probation and restricted cellphone privileges.

Judges could also order minors to attend classes about the long-term consequences of sexting.

“There are some circumstances where there needs to be some accountability, maybe some criminal charges, but lifetime registration as a sex offender is an awfully harsh punishment if you’re going to prosecute them under the child pornography statute,” said Dayna Blazey, chief prosecutor for the child protection team in Travis County.

Blazey said she and other prosecutors, along with law enforcement personnel and Watson’s staffers, are part of a “Sexting” Stakeholders committee looking at what to do with the child pornography laws to address modern trends and technology. She said they see these cases three to four times a week.

“We have parents coming to us, school officials coming to us, and sometimes kids coming to us to report it,” she said.

The kids who come often complain that images they sent their boyfriend or girlfriend are being distributed to friends after a break-up, so prosecutors work to track down the images to stop transmission— a difficult task, Blazey said.

“The law needs to be more adapted to this particular population since our child pornography statute is really not geared toward this type of conduct,” Blazey said.

Texas joins 16 other states in introducing bills or resolutions that address sexting by minors this year, according to the National Conference of State Legislatures.

At least 10 states have enacted legislation aimed at youth sexting since NCSL began tracking this topic in 2009.

“The legislation that we are working on recognizes that sexting is wrong and illegal,” Watson said at a press conference in November. “This proposed new law would provide education for our children regarding the harm sexting causes, and it will give prosecutors an appropriate tool to stop this problem.”

The frequency of sexting cases coming through Blazey’s office seems consistent with the only national survey conducted on sexting behavior.

According to an online survey sponsored by The National Campaign to Prevent Teen and Unplanned Pregnancy in 2008, one-fifth of the 653 surveyed teens reported they have sent or posted nude or seminude images or video of themselves to a peer.

Nearly one-third — 31 percent — had received a sexually explicit image of someone they knew. Top reported reasons for sexting included getting or keeping the attention of the opposite sex or being flirtatious.

Teenagers engaging in risky behavior is not new, of course, but what is new is that the evidence can haunt them decades later.

“Young people need to understand that nothing ever goes away and there will come a day when they’re trying to get a job and it can come back,” said Heather Batten, a 20-year old from Waxahachie who admits to sexting when she was in high school. “Or even worse, their grandkids can find them at some point.”

The National Campaign survey suggests that many teenagers do realize the long-term implications of sexting: More than one-third of teenagers said it is common for nude or semi-nude images to be shared with people other than the intended recipient, and 75 percent acknowledged that sending sexually suggestive content electronically “can have serious negative consequences.”

Many parents may not even realize their children engage in these activities, but parents who talk with their kids about the long-term dangers and even the safety issues of sexting can raise young people’s awareness of the consequences of their behavior. Educating the community about sexting and its social and legal repercussions is among the goals of Watson and Abbott.

“We want to raise awareness among teens, parents and schools about the reality of this practice taking place and to help teens realize the consequences of their actions,” Abbott said at their joint press conference in February. “It’ll only a take a minute or two, or less, for some of these kids to take a sexually explicit photo of themselves and send it off to someone else, but that momentary action can have a lifetime effect on their future.”