Thanks to all for their comments on my recent blog about how teens should respond when they receive a “sext.” Here are some of my follow-up thoughts, based on comments and emails received, as well as an email exchange among members of the Youth Risk Online Google Group which includes some of the brightest “teens and tech minds” in the world. (You can read fellow member Larry Magid’s comments here.)
Being a criminologist who regularly works with police officers and who is currently working with the FBI to train officers about issues relating to cyberbullying, I certainly can appreciate the interest expressed by the law enforcement folks who responded saying that the evidence needs to be kept. The problem is that if they follow this advice, they risk prosecution for possession of child porn if a district attorney is trying to make a name for him/herself. Plus if a friend gets a hold of their phone, finds the image, and distributes it to others, there will be huge problems.
I also appreciate the concerns of those who maintain that an adult must be consulted. This is sage advice for many adolescent problems (including those that originate or escalate online), but frankly it just won’t work in a sexting incident. As I pointed out in my post, it is my contention that the vast majority of the time teens receive sexting images from those they consider close friends. As such, there is absolutely NO WAY they will tell an adult about this because they do not want to get that friend into so much trouble. If my best friend sends me a topless picture of his girlfriend, am I going to rat him out? Of course not. Adults, it seems, are forced to respond to sexting incidents in extreme ways – ways that have long-term, irreversible consequences. Until we can develop reasonable responses that do not potentially foreclose on the futures of all involved, we are wise to advise that students do not contact adults, unless the incident is appearing to get out of control. And I think teens know when it is out of control.
Moreover, whenever educators ask me what to do about sexting incidents they are made aware of, I generally advise them to contact a law enforcement partner. Unfortunately, this too is bad advice, but the only advice that is safe. Teachers who confide in other teachers risk prosecution for distribution of child porn. Educators simply aren’t trained to deal with these problems and if they try to do the right thing, it will likely come back to haunt them. The problem here is that cops and district attorneys do not have a good history when it comes to dealing with sexting. But they are not the only ones to blame for this. They are applying and enforcing outdated laws that weren’t written to deal with this problem. Police and prosecutors are generally black/white types of people, and there is a whole lot of gray when it comes to dealing with sexting. Until we sort these issues out, it is risky to involve them in responding to the problem. But it is also risky (perhaps even more so) for adults who are confronted with a sexting incident to not contact the police. That’s because they too are potentially subject to long-term, irreversible consequences if they mishandle the incident (that’s especially true for educators).
So, while I appreciate everyone’s feedback, nobody has said anything that leads me to change my advice. Keeping the best interest of teens in the forefront, we must insist that students who receive sext images immediately delete them and hope that the incident ends there. If it doesn’t, then we have to re-evaluate.
If you are a teen and receive a sexually-explicit image of a classmate via your cell phone (or email, or instant message, or via a Nintendo Dsi, or any other type of electronic communication), what should you do? This can be a challenging situation, to say the least. We know that anywhere from 10-30% (or more) of teens have received such images, and many probably don’t know what to do. You have no doubt seen the examples in the media of teens being cyberbullied, arrested, or even committing suicide as a result of bad decisions involving the circulation of nude personal pictures. My thoughts here are intended to provide you (youth) with a specific and simple strategy to help avoid any of these consequences.
If you do receive such an image, odds are that it was sent by a good friend (or a boyfriend or girlfriend). As a result, you probably don’t want to get this person into too much trouble, but you figure that sending or receiving nude or semi-nude pictures of another teen is probably not going to lead to great things in life (because if you think about it, it is highly inappropriate, morally wrong, and potentially illegal). So what do you do? Well, most adults might advise you to “tell an adult you trust.” This is generally good advice, however in the case of a naked photo of an under-aged youth, this can be devastating for all involved. For example, if you show the image to a teacher, he or she is likely required to report it to the police. Teachers who don’t can lose their teaching license and/or be fired. If they don’t know what to do and seek guidance from a fellow teacher, they could get into even more trouble. For example, if you hand your cell phone with the nude image over to the teacher, and he or she shows another teacher, both teachers (and you) could be charged with “possession” of child pornography since they had possession of your phone. That’s because the police often treat these images as child pornography – irrespective of the intent of the sender or the relationship of those involved. This means that if you take the picture, you can be charged with “creation of child pornography.” If you send or forward the picture, you can be charged with “distribution of child pornography.” If you keep it on your phone, you can be charged with “possession of child pornography.” In some cases you could even end up on state sex offender registries.
My advice to teens who receive a nude or semi-nude image of a classmate is simple: immediately delete it. Don’t tell anyone about it. If there is an investigation and someone asks if you received the image, you should tell them yes, but that you immediately deleted it. If necessary, they can get your cell phone records from your service provider which will show that you deleted it within seconds of receiving it. This is the best situation for you. Of course, some adults aren’t going to like this advice because they want to be in the “know” to attempt to deal with the problem, but I think it is the only safe advice I can offer youth at this point.
The primary goal in sexting incidents is to limit the victimization of the person portrayed in the image. If the individual(s) who initially received the image immediately delete it, there would be no distribution and victimization would be minimized. Be sure to tell your friends that it is in their best interest not to hold onto or send these kinds of images. It just isn’t worth the potential long-term and irreversible consequences to your (and their) reputation.
If you find out that your friends are continuing to distribute naked pictures of themselves or others, you would be wise to let them know how such behavior can seriously mess up their future. Strongly encourage them to stop and to delete the images. If you are concerned about the well-being of the person depicted in the images, you may want to anonymously report the behavior to your school (if there is a way to do this).
We have said it many times on this blog, but it bears repeating here that neither Sameer nor I are attorneys, so you should not interpret this blog as formal legal counsel. We are simply looking out for the best interests of teens and those who interact with them. Stay tuned for a follow-up post in the near future on what teachers should do if a student tells them (or shows them) a sexting image involving a student.
I offer additional thoughts on this topic in the next post, which you can read here.
Our state-by-state bullying and cyberbullying laws fact sheet is one of the top-most documents downloaded from our site; we encourage you to check it out if you haven’t already. That said, it is also a fluid resource that we are constantly updating. Some recent questions have been posed, and so I wanted to take the opportunity to clarify some of its content. If you have further questions, please keep sending them in, as we want this resource to be extremely helpful to those on the front lines of this issue.
Question: “A significantly larger number of states passed bullying laws that include electronic harassment but not cyberbullying. Could you clarify why electronic harassment is not included under “cyberbullying”? What are the technical differences between the two?”
Answer: There is very little, if any, difference between “electronic harassment” and “cyberbullying.” We can only think of a few exceptions to this (for example one instance of harassment online might not be considered cyberbullying because we usually conceptualize ‘bullying’ as repetitive behavior). All we were trying to capture was whether or not the laws included the word ‘cyberbullying’ in them. As you can see, most did not. Either way, electronic harassment and cyberbullying are essentially synonymous when it comes to the content and intent of these laws.
Question: “Do those states that specify criminal sanctions criminalize only face-to-face bullying or cyberbullying as well?”
Answer: Under the criminal sanction portion of our chart, we only noted ‘YES’ for those states that have a criminal sanction for certain types of *electronic* harassment (or cyberbullying). We did not include states that just have criminal sanctions for face-to-face bullying or harassment, which most states do have (but are typically classified under “assault” and “stalking” statutes).
Question: “In regard to the criminal law system’s authority over the issue of cyberbullying, in your professional opinion, should more laws be passed criminalizing cyberbullying? Beyond the principle of the law, are they effective in practice?”
Answer: Please see this recent blog post on cyberbullying laws which summarizes our position on this question. We have also posted other blogs that might be of interest to your work – feel free to search for ‘law’ in the blog search engine, or simply browse some of our recent posts.
Many of you perhaps already saw the brief comments I wrote for the New York Times Opinion Page in the aftermath of Tyler Clementi’s tragic suicide. They asked me to comment on the extent to which this incident was typical of many cyberbullying cases that end in suicide and whether or not criminal action against the bullies is an appropriate response. Below are my comments for those of you who hadn’t already seen them. I also encourage everyone to explore the other perspectives included on the “Room for Debate” page.
Cyberbullying, while similar to traditional harassment, does have a different quality — namely, humiliating rumors and vicious taunts can be viewed by millions online and they can never be removed from the Internet. Cyberbullying laws are useful to the extent that they draw attention to this problem, but it is important that laws are crafted in a way that is informed by research, not singular high profile incidents.
The vast majority of cyberbullying incidents can and should be handled informally: with parents, schools, and others working together to address the problem before it rises to the level of a violation of criminal law.
Certainly, tragic incidents like suicide, thrust cyberbullying (and traditional bullying) into the public discussion. Prosecutors are forced to shoe-horn these incidents into existing statutes, and in some cases this is not done consistently or even appropriately.
It perhaps is not surprising that those incidents that result in significant harm to the target, such as a suicide, are handled more seriously by the criminal justice system. But to some extent this is true in other areas of criminal law. If I drive home from a party after having a few too many drinks, maybe I make it home without being caught. Or maybe I get pulled over and arrested for drunk driving. Or, maybe I swerve onto the shoulder and hit a pedestrian. In all cases I was engaged in the same illegal behavior. But the harm that results will, in some cases, become an important determinant of the appropriate punishment.
It is imperative that everyone who works with youth, but especially law enforcement officers, stay up-to-date on the ever-evolving state and local laws concerning online behaviors, and equip themselves with the skills and knowledge to intervene as necessary. In recent survey of approximately 500 school resource officers from around the United States, we found that almost one-quarter of respondents did not know if their state had a cyberbullying law. This is surprising since their most visible responsibility involves responding to actions which are in violation of law (e.g., harassment, threats, stalking).
A couple of weeks ago, we posted a brief summary of the state laws concerning bullying and cyberbullying. At last count, 44 states had laws regarding bullying, and 30 of those included some mention of electronic forms of harassment. Almost all of these laws simply direct school districts to have a bullying and harassment policy, though few delineate the actual content of such policies. Please review this document and let us know if anything is inaccurate as we want to try to keep it as up-to-date as possible.
Some states, like Wisconsin, have both a bullying law (which recently passed) and separate statutes regulating telephones and other forms of electronic communication. Specifically, in Wisconsin it is a misdemeanor crime to threaten to “inflict injury or personal harm” through the use of e-mail or another computerized communication system. It is also illegal to harass, annoy, or otherwise offend another person electronically. Each state is different with respect to the extent that they specifically address electronic forms of harassment. Educators, parents, and law enforcement officers need to be sure to carefully review and understand the statutes in their own state to understand the formal legal implications of participating in cyberbullying.