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Saturday, January 30, 2010

Ind. Law - Student sexting in Indiana, are felonies the answer?

Last year the ILB had several entries about "sexting," including this worth reading again entry from March 27, 2009 headed "Students Sue Prosecutor in Cellphone Photos Case."

This morning I ran across this story from The Vancouver Sun, written by Glenn Johnson of the Canada West News Service. Some quotes:

To teens, “sexting” is just the digital version of “I’ll show you mine if you show me yours,” but a 12-year-old boy and 13-year-old girl from Indiana are now facing felony charges for sending each other nude pictures of themselves via their cellphones.

The children — in Grade 6 and 7 at the Ben Franklin Middle School in Valparaiso, Ind. — face child exploitation and child pornography charges. The photos were discovered after a teacher confiscated the girl’s cellphone in class last week.

The boy “had sent a text and picture of his exposed genitals . . . and requested that she do the same,” said a report on the incident from the Valparaiso Police Department.

Police said the girl had responded “via phone and text a picture of her nude exposed body and breasts.”

Juvenile prosecutor Tim Harminak and the prosecutor’s office advised police to file charges and the two were released into the custody of their parents.

Cybertip.ca, a Canadian website devoted to protecting children, warns that the explicit images can be kept and circulated far beyond what a child intended. Indeed, at least one of the Indiana pictures was revealed to the students’ classmates.

“Once these pictures/video are sent, there’s no way for you to regain full control,” reads the website.

According to surveys and news reports, the Indiana students are part of a wider trend involving as many as one in five youngsters, which is leaving legislators pondering bills dealing with the exchange of sexually explicit images. * * *

In the Indiana case, prosecutor Brian Gensel told the Post-Tribune newspaper that investigators were still working on the file late this week.

“Our hope is that the attention that is drawn to this will dissuade other teens from engaging in this behaviour,” Gensel said.

“The ramifications of the distribution of this stuff are bad and illegal.”

Criminal charges in adult court carry a maximum prison term of 11 years, but prosecutors expect the case will remain in the juvenile system.

Coincidentally, legislators in Indiana are currently dealing with two bills to deal with the sexting issue. A handful of other states are also looking at legislation.

On Tuesday, a senate committee voted 10-0 to pass legislation to make it a delinquent act if a child is found guilty of sending explicit messages.

Meanwhile, the American Civil Liberties Union has filed a lawsuit in Pennsylvania after girls were threatened with felony child pornography prosecution over pictures they took of themselves.

"Sexting leads to felony charges for children" was the headline to this story Jan. 28th in the Chicago Tribune, written by Kristen Schorsch. Some quotes:
The idea behind sexting, or sending a nude picture via a cell phone text, is not so new. Children played doctor long before grade school students were armed with cell phones capable of snapping photos. They just didn't record an image of the offense.

But technology has created a trail of evidence. Children and teens are capturing nude photos or videos of each other and sending them from friend to friend, and that's landing them in court.

"I think there has always been a sort of, you show me yours and I'll show you mine, and a curiosity there," Porter County, Ind., Prosecutor Brian Gensel said. "The problem now is the stakes are so much higher because if a juvenile sends a picture of themselves to someone else, well, that can be disseminated now to the entire world within minutes."

And that's distribution of child pornography, Gensel said.

Last week, two middle school students in Valparaiso, Ind., were caught sending nude pictures of themselves to each other on their cell phones. The students were caught when the 13-year-old girl's cell phone rang in class, and her teacher confiscated it, according to a police report. The girl cried that she would get in trouble because a 12-year-old boy sent her a "dirty picture."

The boy sent the girl a picture of his genitals and requested that she do the same, the report said. The girl then texted him a picture of her naked, police said.

The students have been charged with child exploitation and possession of child pornography, both felonies. They were referred to the county's juvenile probation department, which will determine whether authorities pursue or drop the charges, Gensel said. If convicted, the students could be required to register as sex offenders, he said.

On Jan. 21st, 6News' Jack Rinehart reported a story headed "Bill Would Lessen Punishment For Teen Sexting: Legislation Would Give Prosecutors, Judges More Options." It began:
Indiana lawmakers will consider a bill that would give prosecutors and judges more options when charging teens accused of sexting.

Currently in Indiana, minors convicted of sending or receiving sexually explicit images via cell phone are charged with a felony, which carries a of penalty of up to eight years in prison and requires registration as a sex offender, 6News' Jack Rinehart reported.

A Senate bill sponsored by Sen. Jim Merritt, R-Indianapolis, would make teen sexting a status offense, giving courts several sentencing options, including requiring the offender to get counseling, attend education programs and perform community service.

The bill is SB 224 and it is eligible for second reading in the Senate.

Here is a letter from Sen. Merritt published in the Jan. 15, 2010 Indianapolis Star.

Posted by Marcia Oddi on January 30, 2010 10:48 AM
Posted to Indiana Law