Child pornography laws can be difficult to enforce against children themselves
POSTED: 1:30 a.m. HST, Jun 12, 2011
The consequences of sexting became widely known in the past week but is not likely to bring an end to the current technology pastime where children are the most vulnerable.
"It's pretty much widespread," said Christopher Duque, retired Honolulu police detective who is now a cybersafety consultant. "It's predominant in Hawaii, as early as fourth or fifth grade.
"The adults are worse than the kids," Duque added, "because we grew up in a generation that when we started using the computer, there was nobody like myself and other cybersafety advocates warning the public about the dangers of misusing technology."
That would be the generation of New York Congressman Anthony Weiner, who is trying to survive politically after lying and then confessing that he had tweeted a bulging-underpants photo of himself to a young woman.
"The children look up to adults for guidance," Duque said, "and when we get this kind of people in office, or any public figure, and set an example for our young people, you're sending the wrong message to them."
Sex text messaging, or "sexting," is the sending or receiving of sexually explicit photographs or videos by computer or cellphone. A national survey by The and MTV in 2009 indicated that 24 percent of 14- to 17-year-olds had been involved in sexting.
In Hawaii, a survey this year by Professor Thanh Truc T. Nguyen of the University of Hawaii's Curriculum Research and Development Group found that 31 percent of children in grades 5 through 12 have participated in "sex text messaging" by cellphones, 19 percent have friends who have "sent or received sex text or photos" and 33 percent have forwarded such messages they received.
"Those three actions are felonies in a lot of states," Nguyen said, "and technically it is a felony here, too, although we haven't tried any children for child pornography under the letter of the law, yet."
In March, The chronicled the painful experience of "Margarite," a Lacey, Wash., 14-year-old who posed naked last winter before her bathroom mirror, took a picture with a cellphone and sent the full-length frontal photo to "Isaiah," her new boyfriend. They broke up soon afterward, and Isaiah forwarded the photo to another eighth-grade girl. In less than 24 hours, it had spread to possibly thousands of students at four middle schools.
The county prosecutor decided against filing charges against Margarite but charged Isaiah and the two girls who initially forwarded the photos with dissemination of child pornography, a Class C felony. The charges later were lessened to a misdemeanor and they were made eligible for a community service program.
"What the young lady and her family experienced is not uncommon," Duque remarked. "Most fail to realize the impact of what is posted on the Internet or how it can affect people's lives, now and in the future, whether it be in the next few minutes or in the next few years."
At least two teenaged girls on the mainland have committed suicide following cellphone dissemination of photos of their nudity.
Some states have implemented juvenile diversion programs for minors caught sexting, according to an article this year in the Iowa Law Review. In Ohio, the program focuses on "the legal ramifications, the effects on the victim, establishing age-appropriate sexual boundaries and responsible use of the Internet, cellphones and other communication devices." In New Jersey, minors charged with sexting will not face criminal charges if they complete a diversion program.
Kamehameha Schools took disciplinary action last year against several students over the production of a sexually explicit video that was shared on social networking sites. Hawaii Deputy Attorney General Kevin K. Takata said the matter was forwarded to the Attorney General's Office but no charges were filed.
No criminal cases of a minor engaged in sexting have been filed in Hawaii, said Takata, head of the Hawaii Internet Crimes Against Children Task Force, which focuses on combatting predatory activities and human trafficking. While that includes sexting by children, he said, the Attorney General's Office has had no recent cases to review. If such a case surfaces and prosecution follows, Takata said, it would be tried in Family Court, which is closed to the public, unless the juvenile was waived and tried in adult court. "Frankly, if the juvenile has no prior contact with the law, I can't see that happening."
Duque said he believes the law needs changing.
"The statute that's being applied if the children are prosecuted is meant for online calls by predators and pedophiles and traffickers of pornography," he said. "It wasn't intended for our kids being prosecuted and further victimized because of their lack of education and naiveté."
Meanwhile, most of the activity responding to the problem occurs at the school level, Duque said, as he and Nguyen respond to requests that they come to the school and talk with students, faculty and parents.
"They approach it with educational awareness, talking to the parents, talking to the kids to be aware of the ramifications of them performing sexting, the possible criminal prosecution and how it affects their personal future," Duque said.
"Usually, the teacher hears it from the kids, or a parent will approach the school saying that, ‘My child received a sexting message; how do we address it,'" he said.
Nguyen's survey indicated that 85 percent of Hawaii students would talk to their parents about sexting, 76 percent would talk to teachers and 80 percent talk to friends.
When asked by The reporter what advice she would give anyone thinking of sending a sexually explicit photo, Margarite blushed and looked away.
"I guess if they are about to send a picture," she replied, laughing nervously, "and they have a feeling, like, they're not sure they should, then don't do it at all. I mean, what are you thinking? It's freaking stupid!"