Feb. 5, 2010

DWU professor among first in the nation to address ‘sexting’

Jesse Weins

MITCHELL — Juvenile sexting isn’t entirely new to the scene of teens and technology, but prosecuting its offenders is.

Enter the world of technology, where a naughty photo or explicit video is just a cell phone click away. “Sexting” is the term coined to describe sexualized texting – especially sending nude or partially nude photos or videos via cellular phones. When adults ‘sext,’ it generally isn’t illegal. But if an adult exchanges a photo of a sexualized child – that’s child pornography, which meets a slew of well-defined punishments. Now the problem is that minors are sending each other these images and videos of themselves. This has led to states prosecuting minors for such activities under traditional child pornography laws, since the images still fit that definition.

But such a result does not make sense, says Jesse Weins, assistant professor of criminal justice at Dakota Wesleyan University. The problem is there are no alternative ways under the law of dealing with the issue.

So Weins and Todd Hiestand, assistant professor of criminal justice at MidAmerica Nazarene University, are trying to fill this gap with a law journal article, “Sexting, Statutes, and Saved by the Bell: Introducing a Lesser Juvenile Charge with an ‘Aggravating Factors’ Framework.” The article will soon appear in the Tennessee Law Review, the flagship journal at the University of Tennessee – Knoxville College of Law, a top-tier ranked law school.

Weins and Hiestand, along with a University of Florida professor published contemporaneously with them, are the first to address this topic in a law journal in the nation.

“We argue that a legal response is necessary and appropriate for sexting, but that it should take the form of a lesser juvenile charge, rather than the use of traditional child pornography statutes,” he added. “We also critique recent state legislation on the topic and provide a model statute for sexting.”

To get the point across, they use characters from the early ’90s teen sitcom “Saved by the Bell” to act out fabricated scenarios that explore the various results of sexting and the various punishments under the law – and then Weins and Hiestand give their recommendation in the form of a new model statute.

A number of states have already begun changing their laws to try to make room for sexting, Weins pointed out, but their responses have not been ideal. Two have created exceptions in their traditional child pornography offense for certain sexting juveniles. But these turn out to be irrational or ambiguous in their application, leaving poor results or room for inconsistency. Two other states have added a new sexting charge in addition to their current child pornography offenses.

“While the latter method gives prosecutors the discretion to choose a new sexting charge rather than traditional child pornography, a prosecutor may also simply charge juveniles with both types of offenses,” Weins said. “Therefore, this method fails to address what the sexting legislation was intended to deal with in the first place – the overzealous prosecution of sexting minors under harsh child pornography offenses.”

Weins’ research is not to bring down a hammer on every child engaged in sexting, or propose they all be sent home for milk and cookies. The research clearly shows that the current system just does not work – and they propose a statute that they believe will.

As usual, prosecutors will still make judgment calls on a case-by-case basis as to whether or not to proceed with any charges. Their statute just gives prosecutors and the defendants consistent guidelines for different types of sexting situations. Weins pointed out that more severe behavior deserves more severe consequences while a bad judgment call might be treated more delicately.

Weins, a DWU alumnus, met Hiestand while practicing law in Kansas City. Hiestand suggested the article topic and the two spent the summer researching and writing.

“He thought it was a timely issue in need of discussion, and the more I looked into it the more I agreed,” Weins said. “We were very pleased that some top-tier ranking law schools, like the University of Tennessee’s, were interested in publishing the article. We hope that the many states' legislators will consider our model statute as they consider how best to address the issue.”