Almost ten years ago, a Charlottesville middle school suspended three students for exchanging nude photos of themselves digitally. The Culpeper County Sheriff’s Office charged the children with possession of child pornography — a felony punishable by up to five years in prison. When questioned about the legal punishment for the children involved, then-Commonwealth’s attorney Gary Close stated, “I’m not interested in giving stupid teenagers a felony record over something like this.” Oftentimes, local law enforcement will choose not to press charges against children involved in such sexting scandals. In 2014, in a case involving more than 100 central Virginia teenagers, Maj. Donald A. Lowe, chief deputy for the Louisa County Sheriff’s Office, stated that “authorities are using the case more for teaching parents and teens about sexting than for law enforcement … There’s no reason to destroy people’s lives and careers over this.” I’m thankful that both Major Lowe and Close recognize the distinction between exploitative child pornography and teenagers exchanging nude photos as a form of sexual interaction. What is troubling however, is that, although Lowe chose not to press charges, hypothetically, he could have. And sometimes, law enforcement will — a decision with devastating consequences.
In September 2015 in Fayetteville, N.C., police charged 17-year-old Cormega Copening with sexual exploitation of a minor because he exchanged nude photos with his girlfriend who was the same age. The images were sent privately and consensually, and yet, Copening faced five felony charges of making and possessing child pornography. His girlfriend was charged with two counts of felony sexual exploitation of a minor. Ironically, the same laws which are meant to protect children, often criminalize them. Thankfully, the charges against both Copening and his girlfriend were eventually dropped. But the time, effort, money and emotional cost of the judicial process that eventually led to this dismissal should not be overlooked. The reality is that neither Copening nor his partner should have endured such an experience with law enforcement in the first place. And, unfortunately, some are not as lucky.
In June 2019, Colorado’s Supreme Court upheld a ruling that required a 15-year-old boy to register as a sex offender after exchanging explicit pictures with two girls roughly his age. This decision will undeniably alter his life, stripping him of privacy and limiting where he can live and work. As a 15-year-old child, he will be exiled as one of society’s “untouchables” and have to face the intolerance and prejudice that inevitably comes with the label of “sex offender.”
Certain states have taken measures to ensure that harmless, sexting teenagers are not swept up by child pornography laws. Texas, for example, allows an exception for sexting if a minor sexts with another minor who is no more than two years older or younger and the two are dating. However, Virginia law does not currently make such distinctions, meaning any sexually explicit photo exchanged between two parties, consensual or not, is considered child pornography. In Virginia, schools must alert police when a suspected crime has been committed, meaning officials have no choice but to involve the police when they become aware of sexting occurring between students. Once the school becomes involved, students will likely be suspended or even expelled.
When it comes to sex, Virginia law makes room for nuance. Sex between a 13-year-old and a 20-year-old is considered statutory rape. However, Virginia’s close-in-age exemption means that teenagers between 15 and 17 and minors 13 and 15 can have “sexual congress” without breaking the law. Why can’t such distinctions be made for sexting between teenagers?
Of course, some will respond to this argument with the suggestion, “Just don’t take nudes!” Such logic identifies the teenagers as the problem. Such logic states that we must adapt to outdated laws with morally reprehensible consequences. But the problem here is not the children and teenagers. It is the law. And it is the law’s responsibility to change, not ours to acquiesce to its absurdity. Others may worry that decriminalization will lead to an increase in sexting between teenagers. The link between criminalization and deterrence is unclear and the data is often conflicting. A 1988 study analyzing the effects of New York’s Juvenile Offender Law — which lowered the age required to try juveniles as adults in cases of murder, assault, rape, burgalry and arson — beared largely inconclusive results. Yet, suppose that Virginia’s child pornography laws were effective in deterring children from sexting. Are children, like Cormega Copening, merely a means to an end? Is their suffering — whether it be through jail time or being placed on the sex offender registry — simply a tool for the justice system to exploit?
This is not a normative argument regarding whether or not teens should be sexting. Whether you like it or not, they are. And the law can choose to criminalize such activity or not. So I ask that you place your personal opinions on sending nudes aside — just for this moment. You might think it’s gross and wrong and totally inappropriate! But hopefully you can also see that there’s something gross and wrong and totally inappropriate with criminalizing teenagers for private and consensual sexual interaction.
Esther Eriksson von Allmen is an Opinion Columnist for The Cavalier Daily. She can be reached at opinion@cavalierdaily.com.
The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.
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