‘Sexting’ laws need clarity

An East Oahu resident and former public school teaching assistant was indicted by a grand jury this week on charges of persuading a 12-year-old girl to send him explicit photos of herself. The activity is known as sexting, and Cody M. Onizuka, 25, is accused of possession of child pornography, a Class C felony.

This case, Hawaii’s first sexting one resulting in criminal charges, will be adjudicated in court — but it highlights the need for law changes to deal with the growing problem of sexting involving children. Legal distinctions must be updated appropriately according to the degree of victimization.

The city prosecutor’s office has reviewed other cases of sexting but has been reluctant to bring charges in cases where both people involved were younger than 18 years old and boyfriend-girlfriend, according to Senior Deputy Prosecutor Christopher Van Marter.

No criminal cases of a minor engaged in sexting have been filed in Hawaii, said state Deputy Attorney General Kevin K. Takata, head of the Internet Crimes Against Children Task Force.

That policy is understandable but could lead children to believe they are immune from harm and may conclude that the activity is cool. It is not.

Most minors "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," said retired Honolulu police detective Christopher Duque, a cybersafety consultant who visits schools to warn students, faculty and parents.

In a recent case in Washington state, a boy and two girls were charged with a Class C felony for forwarding nude photographs of a third girl, who had initiated the photos of herself by cellphone but was not charged. Charges were lessened to a misdemeanor and the boy and two girls finally were made eligible for community service.

Some states have begun to address the issue of sexting — an umbrella term that actually applies to a wide range of situations, behaviors, age dynamics and levels of victimization.

Ohio requires minors who have been caught engaging in sexting to be put under court supervision and enroll in a related educational program. In New Jersey, minors can avoid criminal charges by completing a diversion program.

Unfortunately, no state appears to have differentiated between primary sexting, in which a child forwards a nude photo of oneself, or secondary texting, forwarding a nude photo of another child, which is more likely to involve intentional infliction of emotional distress. The difference is profound.

The problem is widespread, and given today’s proliferating and accessible technology, likely to grow. A recent survey indicates that, alarmingly, nearly one-third of Hawaii children in grades 5 through 12 have participated in "sex text messaging" and one-third have forwarded the material they received. Technically, those activities are a felony in Hawaii and most other states.

This week’s indictment of Onizuka, 25, for allegedly coaxing a girl to send him nude photos of herself, is Hawaii’s first criminal sexting case. The offices of the city prosecutor and Hawaii attorney general appear to have acted responsibly in determining which cases should be taken to court. However, state legislation and policy is needed to provide guidance on how sexting — a form of child pornography — should be treated depending on the circumstances.