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Who decides whether consensual teen 'sexting' is a crime?

The behavior we call "sexting" burst into the news when cellphones became capable of sending picture messages. Sexually suggestive behavior between underage teens may be nothing new, but technology has thrust it onto a collision course with the law.

The word "sexting" implies sex-related text messages, but it more broadly describes the transmission of nude or sexually suggestive images via phone or Internet. When those images are of someone under the legal age of sexual consent, they could be considered a form of child pornography. Is that fair?

Is sexting the same thing as other forms of child pornography?

In principle, the possession of child pornography is illegal because a child has to be victimized in order for it to exist. When teenagers become engaged in relationships and send explicit images to one another, they're choosing to do so; no one is being coerced.

For that and other reasons, many critics believe that child pornography laws shouldn't be used to prosecute sexting between teens in consensual relationships.

Unfortunately, it's not that easy. For example, what if the teens break up and one lashes out by making previously private images public? At that point, numerous other people may have a sexually explicit photo of an underage teen who has, in fact, been victimized.

Another problem is that not all teens are legally the same. In Pennsylvania the legal age of consent is 16, but only for sex with someone under 18. You might be OK with sexting between a 16-year-old and a 17-year-old, but what about between a 16-year-old and a 19-year-old? What if they're both still in high school? How about sexting between 16-year-old and a 15-year-old?

Who decides if sexting should result in child porn charges?

Sexting is still new enough in our culture that few laws address it directly. That could leave prosecutors with few good options for filing charges. Since sexting can technically be considered child pornography, some prosecutors will file child porn charges if the alternative is no charges. Prosecutors have a lot of discretion about what charges to file, if any, so it's really up to them. One prosecutor might choose to file child porn charges only in especially bad cases, while another might file them in every sexting case.

If you or your child has been charged with a crime due to sexting, you need to contact a criminal defense attorney right away.

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