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33 Harv. J.L. & Gender 687 (2010)
The Harm in Sexting: Analyzing the Constitutionality of Child Pornography Statutes that Prohibit the Voluntary Production, Possession, and Dissemination of Sexually Explicit Images by Teenagers

handle is hein.journals/hwlj33 and id is 691 raw text is: THE HARM IN SEXTING?: ANALYZING THE CONSTITUTIONALITY OF CHILD PORNOGRAPHY STATUTES THAT PROHIBIT THE VOLUNTARY PRODUCTION, POSSESSION, AND DISSEMINATION OF SEXUALLY EXPLICIT IMAGES BY TEENAGERS SARAH WASTLER* INTRODUCTION A new trend among teenagers has recently triggered concern among parents and educators and fascinated the media. However, unlike many ado- lescent fads that provoke dismay from the older generation, sexting-the transmission of sexually explicit photos via text message'-has resulted in serious consequences for some participants. Creating, possessing, or dis- seminating sexually explicit photographs of a minor, even when self-pro- duced, may violate state and federal child pornography statutes.2 Although the statutes prohibiting child pornography (as well as the severe penalties for violation) were enacted to address a very different crime-the rape and molestation of children, captured on film or in other visual formats3-the laws do not explicitly exempt images that were voluntarily produced and disseminated by the minors themselves.4 As a result, prosecutors have brought child pornography charges against some sexters,5 and others have * B.A., Georgetown University, 2006; J.D., Harvard Law School, 2010. I would like to thank my husband, Benjamin, and my family for their support, as well as Diane Rosen- feld and Dena Sacco, whose course on Child Exploitation, Pornography, and the Internet was the inspiration for this paper. 'The National Center for Missing & Exploited Children, Policy Statement on Sext- ing (Sept. 21, 2009), http://www.missingkids.com/missingkids/servlet/NewsEventServlet ?LanguageCountry=en_- US&Pageld=4130 (Sexting is a term coined by the media that generally refers to youth writing sexually explicit messages, taking sexually explicit photos of themselves or others in their peer group, and transmitting those photos and/or messages to their peers.). 2 Stephen F. Smith, Jailfor Juvenile Pornographers?: A Reply to Professor Leary, 15 VA. J. Soc. Pol'Y & L. 505, 513 (2008) (noting that although child pornography offenses vary across jurisdictions, they are generally broad enough to apply to self-produced child pornography). 'Id. at 516. See, e.g., 18 U.S.C. §§ 2251, 2252, 2252A (2006) (proscribing the possession, distribution, production, or receipt of child pornography in a manner affecting foreign or interstate commerce). 5 See, e.g., Deborah Feyerick & Sheila Steffen, 'Sexting' Lands Teen on Sex Offender List, CNN.coM, Apr. 8, 2009, available at http://www.cnn.com/2009/CRIME/04/07/sext- ing.busts/index.html#cnnSTCText (reporting on the case of Phillip Alpert, an eighteen- year-old who is now required to register as a sex offender in Florida after being convicted of sending child pornography for forwarding a naked photograph of his sixteen-year-old girlfriend to a large group of people following an argument); David Rosen, Sexting: The Latest Innovation in Porn, COUNTERPUNCH, Mar. 25, 2009, http://www.counterpunch.org/

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