by Aimée Sutton
Parents have their hands full with all the social media and electronic perils facing their adolescent children these days. One set of parents in Iowa decided that that they were better positioned than the county prosecutor to help their daughter navigate the complexities of these issues, and so they filed suit in federal court to prevent a local prosecutor from charging their daughter with transmitting suggestive images of herself.
The parents were prompted to their action when the prosecutor threatened to charge their daughter with sexual exploitation of a minor for taking photos of herself and sending them to a boy in her class. Law enforcement became aware of the photo exchange when other students were caught at school printing out photos of their naked classmates. The lawsuit uses the pseudonym “Jane Doe” for the girl to protect her privacy.
In the photos, the girl was wearing underwear, and her hair covered her breasts. Because there is no genital exposure, the photos likely do not even fit the legal definition of pornography. Nevertheless, the prosecutor threatened to lump her in with the students who exchanged more explicit images.
According to the Des Moines Register, the program that the prosecutor wants all the students to participate in includes:
- a class about the dangers of sexting
- community service
- restrictions on the teenager’s cellphone and computer use
- a written admission of guilt
The parents’ lawsuit denies that their daughter is guilty of anything. Their claim is based on the First Amendment and points out that there is no nudity in the photos their daughter sent. They are merely suggestive.
Even setting aside the First Amendment protections that apply to photos of this nature, many legal scholars think it is absurd to prosecute someone for sexually exploiting himself or herself. These laws were designed to prevent others from taking sexual photos of a young person and disseminating them.
One of the most difficult things for those accused in these cutting-edge cases is that the stakes are often quite high. Even a charge based on a novel legal theory can lead to severe sanctions such as sex offender registration.
We at the Marshall Defense Firm in Seattle are well acquainted with the problem of old criminal statutes being applied in ways their authors never intended. We’ve seen this both in federal court (mostly recently in Tacoma and Spokane) and in Washington State courts. Prosecutors are becoming increasingly creative in their charging decisions. So we are frequently called on to develop novel defense approaches to these prosecutions, from child pornography to sexting cases. We often work closely with forensic computer experts to help us provide a thorough defense.