On a typical day Ben Hunt and his best friend John Eicher, both 14, send each other about a dozen routine text messages. But on Jan. 15, while at school, Hunt sent Eicher something on his cell phone that suddenly put their futures in peril: a photo of a girl in their class exposing a breast. Eicher didn’t see it as a big deal. “I really didn’t think of deleting it,” says Eicher, an eighth grader who at the time attended the Lawrence School in Falmouth, Mass., with Hunt. “I was, like, ‘Whatever.'”
But school officials, alerted to the photo by two students, sprang into action. They seized Hunt’s phone, and the police arrived. It turned out the photo had been taken by another male student of his 13-year-old girlfriend, who had allegedly posed for the shot. The fact that both boys had received the picture unsolicited, and that Eicher had done nothing more than open the file, didn’t matter. To the shock of the boys and their families, authorities initially said they were weighing whether to charge the teens and four other boys who had received the photo with trafficking in child pornography, meaning they could face jail time and having to register as sex offenders. “What they did was wrong, but did they know it was wrong?” asks Ben’s father, Brian, who owns a limousine service. “These are 14-year-old kids with 14-year-old minds, not adults.”
They are not the only ones swept up in a controversial wave of cases involving what is called “sexting,” the transmitting of nude or semi-nude photos via cell phones. A recent national survey found that one in five teens have sent or posted provocative photos of themselves. And schools are getting wind of such photos and alerting police. Rick Trunfio, first chief assistant district attorney in Onondaga County, N.Y., says authorities can scarcely keep up. “It’s happening frequently,” says Trunfio.
Clearly there are some sexting cases—those in which adults are transmitting the images to other pedophiles, for instance—that do constitute child pornography. Nor is there any doubt that sexting among teens can sometimes have serious consequences (see box). The question is whether the pornography laws were ever intended to target young teens. In one case in October in Greensburg, Pa., officials at the high school seized a phone from a student and discovered a nude photo of a female classmate on it. Police brought child pornography charges against six students. At least five of the students have agreed to probation for misdemeanor charges. “This is a matter between parents and kids,” says the teens’ public defender Dante Bertani. “The kids don’t have any clue this is a criminal offense. To charge some 13- or 14-year-old with child pornography is total insanity.”
Prosecutors argue that though they may have reservations about such cases, they are duty bound to uphold the law—which generally holds that any nude or seminude photo of a person under 18 constitutes child pornography. And parents find themselves in a quandary as well. “They’re freaked out on both sides—they’re clueless and don’t understand that their kids are just as likely to take these pictures as the kids down the street,” says attorney Parry Aftab, founder of WiredSafety.org. “It’s a question of the law catching up with a wrong—but very common—practice among kids.”
On March 6 Hunt and Eicher were informed that no charges would be filed if the boys stayed out of trouble until August. But even that bit of good news didn’t fully alleviate their bewilderment. “I feel badly,” says Eicher. “I wish it had never happened.”