When Clean Kids Take Dirty Pictures: The Sexting Phenomenon and Its Impact on American Teenagers, the Criminal Justice System, and Parental Responsibility 29 Children's Legal Rights Journal 2009

29 Child. Legal Rts. J. 65 (2009)
When Clean Kids Take Dirty Pictures: The Sexting Phenomenon and Its Impact on American Teenagers, the Criminal Justice System, and Parental Responsibility

handle is hein.journals/clrj29 and id is 276 raw text is: When Clean Kids Take Dirty Pictures:
The Sexting Phenomenon and Its Impact on
American Teenagers, the Criminal Justice
System, and Parental Responsibility
By N. Pieter M. O'Leary* & Kathgn M. Caretti**

I. Introduction
In Cincinnati, Ohio, eighteen-year-old Jessica Logan
and two girlfriends took nude photographs of
themselves with their cellular telephones.' Jessica
later sent several of the digital photographs to her
2
boyfriend via her cellular telephone. What she
intended to be a private communication between her
and her boyfriend became public information after
her boyfriend allegedly forwarded at least one of the
digital images to his friends.3 Jessica was soon the
victim of intense school bullying,4 and two months
later, she committed suicide.5 Her parents eventually
sued the school district for not doing more to halt the
bullying their daughter experienced after the
photographs were disseminated.6 Jessica's parents
also sued the city, accusing the police of failing to
press criminal charges against those who forwarded
the nude photographs; they claimed that failing to do
so was pandering pornographic matter.7 Finally,
Jessica's parents sued several students, including
Jessica's two girlfriends, who they believed
circulated the photographs and were involved in
bullying Jessica after the digital images were
disseminated.8
As cellular telephone and digital camera
technology becomes more sophisticated, less
expensive, and more widespread, instant messages
and images can be transmitted at a high volume on a
daily basis. While most experts agree that teenagers
are no more lewd today than they were 50 years
ago, today's cellular telephone technology and
Internet access means the personal and societal
ramifications of lewd behavior are far more serious,
and instant.9 For many teenagers, this method of
communication is meant to be in good fun, thought of
as harmless flirting, with little or no regard for any
legal or moral consequences.1° As is often the case
with teenagers, the thrill of the moment blinds them
to the potential dangers of their actions. Nude digital
images, however, could linger on the Internet or on a
computer's memory long after the teenager has
outgrown his or her impulsive actions.11
Jessica Logan's sad story is an extreme example
of teenage experimentation with sex and digital

camera technology. Her story, however, is only one
of numerous examples of the recent sexting
phenomenon.12 Sexting has gripped the headlines and
left many jurisdictions with the problem of how to
address the issue's legal implications. As of late April
2009, at least twenty criminal prosecutions related to
child pornography have been undertaken or
threatened.13 These prosecutions may result in
teenagers becoming convicted sex offenders.14
The issue of sexting, and its impact on child
pornography, is very serious. In late 1995, a study
estimated that there were nearly one million sexually
explicit pictures of children on the Internet.15 Of
these, it was estimated that nearly one thousand were
graphic images of adults or teenagers engaged in
sexual activity with children under the age of ten.'6
Since 1997, it has been estimated that the number of
Internet images constituting child pornography has
increased by 1,500%.17 According to the National
Center for Missing and Exploited Children, by 2002
there were an estimated 100,000 child pornography
websites on the Intemet.18 Clearly, given the
proliferation of cheap, high-quality cameras and
computers, child pornography has exploded. As such,
when teenagers take sexually explicit photographs of
themselves and transmit them electronically, the
images are likely to linger in cyberspace for years.
The images may eventually fall into the hands of
child pornographers who will use the images to
perpetuate and profit from the exploitation of
underage children. Moreover, these self-inflicted
images may dilute the reasoning underlying many
child pornography statutes.
This article explores the recent phenomenon of
sexting, as well as the arguably overzealous and
novel reaction by some prosecutors who seek to
make registered sex offenders out of teenagers who
send digital images of themselves via cellular
telephones. While some teenagers post self-produced
pornographic digital images or videos of themselves
on the Internet for financial gain, this article explores
the more private practice of sending digital images
via cellular telephone, where the teenager's intent is
simply to flirt or otherwise communicate with
another individual his or her age.19 The authors

Vol. 29 * No. 4 * Winter 2009

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