California Business Litigation Blog

Granting youth greater leniency is currently a high-profile subject of hot debate within the Sunshine State. For the last two years, Florida lawmakers have considered a statutory amendment to decriminalize underage sexting. Numerous states are wrestling with this “hot” issue.

As the term implies, sexting is the electronic transmittal of sexually explicit content. Cell phones are the most common instruments chosen by minors for this purpose.

Underage sexting is a felony under existing Florida law (and in most other states as well). Therefore, courts must currently treat youthful sexters in the same manner as large-scale child pornography distributors and other sexual predators. Convicted minors incur permanent criminal records, lifelong compulsory sex offender registration, and concurrent travel and residency restrictions.

A notable example involved an 18-year-old Orlando resident sentenced to five years’ probation and mandatory sex offender registration for life. These harsh consequences resulted from the young man’s decision to e-mail nude pictures of his 16-year-old girlfriend to numerous friends and family members after a lover‘s quarrel.

By contrast, the proposed amendment would relegate minors’ first sexting offenses to misdemeanors. Maximum allowable punishment would be an eight-hour term of community service or a $60.00 fine. Penalties for second and subsequent offenses would escalate from those modest levels. Punishment for adult offenders would remain unaltered.

Bullying, intimidation, and blackmail are common motivations for the crime of sexting. Thus, under the new law, underage sexters would still face separate enhanced sentences for ancillary offenses such as stalking.

Florida Senator Charlie Dean observed that such issues need to nipped in the bud to avoid youthful pranks from becoming full-blown sexual predation by full-grown perpetrators. Dean further opined that the amendment would serve all these ends - without turning kids into criminals.

Ensuring that punishment fits the crime is a widely accepted legal principle of long standing. Whether youth is sufficient mitigation for establishing allowable criminal sanctions is the question of the legislative debate.

Society already acknowledges offender-specific traits as valid criteria in setting the relative severity of criminal sanctions. Courts and legislators have long recognized perpetrator intent and mental capacity as legitimate determinants of relative punitive severity. Thus, the Florida Legislature’s reconsideration of its previous stance that turned “molehills” of youthful indiscretion into mountains of lifelong ramifications is commendable.

HERE is a link to a list of 2011 legislation in 21 states related to sexting.

Five teens in southern Nevada have been charged with the distribution of child pornography stemming from an incident of apparent sexting.

Nationwide efforts are being made to establish sexting as a legitimate crime in the minds of youngsters.

All five teens are under the age of 15 and will be facing disciplinary action at school as well as in a court of law.

According to police, two teens were discovered viewing nude images of three different girls, ages 12 and 13. The pictures were apparently taken by the girls themselves, texted to another boy, and then distributed by the boy via text message.

The charges will be reviewed and punished after an assessment by the District Attorney, a judge, and a juvenile probation officer.

According to Nye County Sheriff Tony DeMeo, parents and communities nationwide should consider the incident a wakeup call. Teens are not always mature enough to handle cell phones responsibly, nor are they able to gauge the impact of such actions on their futures, DeMeo adds.

Unfortunately, such practices are growing in popularity.

Eli Cline, an eighteen-year old female, claims that teens are only thinking in the moment. According to Cline, middle and high school kids are only worried about being accepted in the now, and the future isn’t given much thought.

Cline thinks that the best way to address the problem is through shared responsibility and suggests that law enforcement officials give seminars in the school to warn of the dangers of sexting.

Sheriff DeMeo agrees that something must be done, noting that he would be more than willing to assist the school district in educating students about the consequences of sharing sexual material via texting.

In a previous post (HERE) we told of a Scranton, PA teenage girl who was suing her school, school district, the county, prosecutors and a detective for illegally searching her cell phone. The search turned up intimate photos of the teen which had never been transmitted to anyone else, or any other cell phone.

The school district has settled the lawsuit without admitting any wrongdoing for $33,000. There is still an active lawsuit against the Wyoming County District Attorney’s Office, which so far has not commented on the suit.

The Third U.S. Circuit Court of Appeals ruled that the district attorney could not pursue felony charges against the teenage girl for "sexting".

In a statement released by the Pennsylvania ACLU the teen said "I hope this settlement will lead school officials in the future to consider whether they have valid grounds to search students' private text messages, emails and photos."

The big question remains unanswered. How far can educators go when it comes to fulfilling their obligation to keep sexually explicit images, audio and text from reaching the eyes and ears of minors on school grounds?

Since the case didn’t make it to a federal jury, school districts around the country have a challenge in creating a standard cell phone search or seizure policy that will be acceptable to the courts and privacy groups.

The ACLU recommends that districts adopt cell phone policies that permit educators to seize devices if they disrupt the learning process, but to not search them without express consent from the student or their legal guardian.

In Scranton, PA, a teenage student is suing the principal of Tunkhannock Area high school, the school district, the county, prosecutors and a detective in the case. The student's phone was searched in a sexting case, which has recently been ruled on by a Federal Appeals Court.

More information on that decision may be found HERE. In a nutshell, the Third U.S. Circuit Court of Appeals ruled that the district attorney may not pursue felony charges against a teenage girl for "sexting".

According to the lawsuit, the teen, who is now 19 years of age, states that the principal illegally searched her phone during the incident, which occurred in January of 2009. Through the search, the principal found nude photos the student had taken of herself. The principal then took the phone and gave it to prosecutors. In the lawsuit, the student states that the photos were never meant to be shared, but were for herself and perhaps her long term boyfriend.

However, due to the nature of the photos, the school's principal, Gregory Ellsworth turned the phone over to the then district attorney of Wyoming County, George Skumanick Jr. After reviewing the images, Skumanick threatened, the lawsuit states, for the student to take a class on sexual violence or to face charges of child pornography, which would be felony charges.

Within the lawsuit documents the plaintiff states, "I was absolutely horrified and humiliated to learn that school officials, men in the DA's office and police had seen naked pictures of me." The student's name is not being released and in court documents she is named only as N.N.

The American Civil Liberties Union of Pennsylvania is representing her in court and through the lawsuit seeks unspecified damages against numerous individuals who were part of the case. The lawsuit also seeks immediate destruction of all remaining images.

Continue reading "Student Sues School After Sexting Incident" »

The American Civil Liberties Union of Indiana has filed a lawsuit on behalf of two students who were suspended from athletic activities after their principal found sexually suggestive photos from a slumber party. In the lawsuit, the ACLU claims that Smith Green Community School Corporation and the Churubusco High School Principal, Mr. Austin Couch violated the students' rights by suspending them for out of school activities. The photos were posted to the student's MySpace pages.

According to the lawsuit documentation, the pictures were taken during a slumber party that occurred during the summer months. The students took photos of themselves kissing and licking a novelty lollipop and pictures of themselves wearing lingerie with dollar bills stuck within the clothing. There was no identification with the photos suggesting that the students attended the high school. The lawsuit states that the students were being humorous and that the actions were "irrelevant" to school functions.

After someone accessed, copied and supplied the photos to the principal, the principal suspended the students from all extracurricular activities for the school year. After parents spoke to the principal, the principal agreed to reduce their suspensions if the students attended several counseling sessions and apologized to the athletic board.

Although the school and principal stated they are unable to comment, they did release a statement stating that the pictures "caused a disruption within our athletic teams at the beginning of this year's sessions." The school states the students did not meet extracurricular expectations.

While the parents appealed the ruling, the students attended the counseling sessions so they could participate in fall activities. They also apologized for their behavior in front of the all male athletic board. The ACLU states that this was humiliating and embarrassing.

The ACLU states that this is only one case, out of many similar cases playing out across the country. The organization claims that private moments like these should stay there and out of school administrator's hands.

The school uses a code of conduct that states that the principal "may exclude any student athlete from representing Churubusco High School if his/her conduct in or out of school reflects discredit upon Churubusco High School or the IHSAA or creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."

The ACLU is hoping to classify the case as a class action suit, since many parents could be part of it. The lawsuit asks for the district to no longer be allowed to punish students for such behaviors and asks that the incident be expunged from the two student's records.

Continue reading "ACLU Files Lawsuit Over Slumber Party Photos" »