In America, an 80-year-old man can have sex with a consenting 16-year-old without breaking the law in over half the states. But the possession by an 18-year-old of a digital image of a 17-year-old’s bare breast is considered by our legal system as the equivalent of setting off a nuclear bomb in a national park.
One reason: the evidence never completely goes away. Like some of the radioactive trace elements produced in nuclear fallout, computerized sexual images retain their poison for several lifetimes.
The courts have responded accordingly, with what sentencing guidelines consider an appropriate level of punishment. If caught, the 18-year-old could face stiff state and federal penalties. Under the 2017 federal Protection Against Sexual Exploitation of Minors Act, a first offender who “knowingly” produces, or causes to be produced or transmitted, “a visual depiction of a minor engaged in any sexually explicit conduct” is subject to a mandatory-minimum prison sentence of 15 years.
And the penalty can be adjudicated long after the offense happened, since there are no statutes of limitations for “child pornography” on the federal level.
Perhaps worst of all, he could end up on the sex offender registry, labeled as a dangerous pedophile — in some states for life.
In 2016, Maine took a common-sense step towards changing the blunt approach that makes youthful indiscretions equivalent to the crimes of a child pornographer. It did so with bipartisan legislation that applied the same age limitations governing who can be prosecuted for sexual abuse of minors to “sexting” on the Internet—a behavior that about one fourth of U.S. teenagers admit to doing.
In Maine, the age of consent is 16.
Maine is still the outlier. While many states have addressed sexting between under-aged teenagers, virtually none have taken into account the fact that young adults sometimes date older teenagers. They are not infrequently part of the same peer group. For instance, 17-year-olds attend college with predominantly 18- to 22-year-olds. Sometimes, this bleeds over into sexting behavior that can incur criminal charges in states where the age of consent for sex is lower than 18.
Even in states where the age of consent is 18, there are generally “Romeo and Juliet” provisions that decriminalize small age gaps between partners, but only for actual sexual intercourse. In Florida, a state that is notoriously resistant to criminal justice reform efforts, consensual intercourse between someone aged 23 or younger and someone who is 16 or 17 is not a crime.
Harsh child pornography laws were created in part to prevent people from being “haunted” by the proliferation of records of abuse. But, perhaps surprisingly, Congress raised the “child pornography” age from under 16 to under 18 in 1984 solely to make prosecutions easier, and the U.S. Department of Justice took no stance on the legislation, leaving the matter to Congress’s “moral judgment.”
Federal inaction has created an inconsistency that should concern any impartial observer. Even as states across the nation are decriminalizing teen sexting, legislators continue their “take no prisoners” approach to sexual images shared among teens on the Internet which are just as ineradicable in cyberspace.
The legal community has taken note of the problem.
“While there has been a great deal of material dedicated to the constitutionality of teen sexting, the question that remains is whether depictions of legal sexual conduct should fit the definition of child pornography?” asked the authors of a 2014 Mississippi Law Journal article.
No one would argue that the posting of sexual images on the Internet is harm-free. Girls have committed suicide because their teenage ex-boyfriends circulated their private sexual images.
All reasonable people want to ensure children are protected. More education in schools about the potential harms caused by such behavior is a must. But the system should also be cognizant of the harm done to young adults when they are criminalized for some forms of sexual practice on the Internet that would otherwise be legal if it were not for the contradictions in defining the age of consent for some activities and not others.
States should follow Maine’s example in resolving these contradictions by aligning their definition of the age of consent for sexual behavior with current strategies that decriminalize sexting among certain age groups.
Or they could at the least consider “Romeo and Juliet” clauses for cases involving teens and young adults.
If more states follow Maine’s lead, perhaps Congress will seriously revisit this issue.
Rory Fleming is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Fleming tweets from @RoryFleming8A.