Last spring, Brush High School (Brush, Colorado) assistant principal Bradley Bass was alerted to a student sexting issue at his school. He and secondary schools director Scott Hodgson looked into it. They talked to some students who were reportedly involved, and determined that intimate images had been shared consensually. At least one student voluntarily showed several images to Mr. Bass and Mr. Hodgson. As a part of the investigation, Mr. Bass used a work cell phone to take photos of the images, and stored them as evidence on a secure school server. While this response may seem reasonable given the need to document the incident, the local district attorney believed it was a crime, and charged Mr. Bass with four counts of sexual exploitation of a child and Mr. Hodgson with four counts of complicity to commit sexual exploitation of a child.
Unprecedented Misapplication of the Law?
Back in March of 2008, Freedom High School (South Riding, Virginia) assistant principal Ting-Yi Oei was asked to investigate rumors that sexual images of students were circulating at the school. The term “sexting” was hardly known by educators at the time. One of the male students who was confronted admitted that he had a photo of a classmate, and showed it to Mr. Oei. After consulting his boss (principal Christine Forester), he was instructed to preserve a copy of the image for the purpose of the investigation. Mr. Oei didn’t know how to get the image from the student’s phone to his office computer, so he asked the student to send the image to his personal phone. Mr. Oei then transferred it from his phone to his school desktop computer.
Prosecutors considered the image to be child pornography and charged Mr. Oei with felony possession of child pornography, in addition to two misdemeanor counts of contributing to the delinquency of a minor for instructing the student to send him the photo.
For years I referred to this case in my workshops as a cautionary tale for educators to keep in mind when dealing with sexting. Overzealous prosecutors can interpret child pornography statutes in a way that could result in legal trouble for even the most well-meaning of educators. Laws that prohibit the possession of sexually explicit images of a minor are largely indiscriminate when it comes to the purpose of the possession, or the intent of the person who possesses the images. Minors, for example, have been charged for possessing explicit images of themselves, and parents, too, could be charged if they have photos of their own kids in a state of undress (in a bathtub, for example). As Joshua D. Herman wrote in the Illinois Bar Journal over a dozen years ago: “These issues pose difficult challenges for school administrators and staff, especially where improper investigation can subject school personnel to prosecution for the same criminal offenses that teens risk by sexting.”
I stopped talking about Mr. Oei several years ago, thinking this kind of thing wasn’t happening anymore. After all, a judge ultimately dismissed his case, saying the image (which depicted a minor girl in underwear with her arms crossed across her breasts), did not constitute child pornography. The school board even agreed to reimburse Mr. Oei for his legal expenses, in the amount of $167,000. And yet, here we are.
The Inadequacy of Most Sexting Laws
Incidents like these are why we need comprehensive and thoughtful sexting laws across the United States. Currently, only 27 states have laws specific to sexting, while the remaining states require prosecutors to interpret the behaviors and shoehorn them into outdated and often inappropriate child pornography laws. Colorado actually has a fairly progressive state sexting law. It gives prosecutors a variety of options when dealing with youth sexting, including a school-based educational program, a citation with a small fine (which can be waived by the court), or other “age-appropriate penalties.” The law specifically prohibits incarceration as a penalty for minors who participate in sexting.
Many states, including Colorado, have provisions in their child pornography statutes to protect law enforcement officers who receive images as a part of an investigation. For example, in Colorado, peace officers, prosecutors, criminal investigators, crime analysts, or other individuals who are employed by a law enforcement agency or district attorney’s office and who perform or assist in investigative duties that may involve sexually exploitative materials are immune from prosecution for possessing or even viewing child pornography. Utah’s sexting law goes a step further and protects others who “who had access to the intimate image due to the individual’s association with the investigation or prosecution.”
Most criminal laws require prosecutors to show the offender intended to break the law. But apparently that isn’t the case for child exploitation statutes in Colorado. Most prosecutors across the country consider all of the circumstances surrounding sexting incidents and use their discretion when determining an appropriate course of action. It is rare, for example, for children who consensually share intimate images, or for parents who possess bathtub photos of their kids, to be charged with possession or distribution of child pornography, even though the letter of the law may allow them to be.
Earlier this fall, charges against secondary schools director Hodges were dropped, though the case against assistant principal Bass persists. The school and broader community has rallied around Mr. Bass, arguing that he was just doing his job and didn’t intend to cause any harm. Even the parents of the girl in the photos have asked court officials to drop the case. It seems to me the “victim” should have some input into how these cases are processed. In many ways, the prosecutor’s obstinance has drawn more attention to this incident, possibly leading to further harms to those involved. Instead of attending to the needs of the families involved and quietly and reasonably addressing any possible investigatory missteps by the school, the prosecutor decided to pursue a much more conspicuous intervention.
The important take-away for school administrators is that they need to be extremely cautious when it comes to these kinds of situations. If an educator is made aware of sexting occurring among students, they need to get law enforcement involved immediately. In most states, educators are mandatory reporters and are therefore compelled to report any instance where a child could be being abused or exploited. In fact, back in 2008, Mr. Oei was initially charged with failure to report suspicion of child abuse, even though nobody at the school believed the image constituted child abuse. It is a legitimate question whether consensual teen sexting constitutes child abuse, or whether an image voluntarily created and shared with another is exploitation. It certainly is in everyone’s best interest to limit the dissemination of explicit images of minors, and investigation and response procedures need to account for that. But what should educators or other non-law enforcement officials do when made aware of sexting? Beyond their role as a mandatory reporter, educators probably need to steer clear of these kinds of investigations, given the uncertainty of how police and prosecutors will view them. School administrators should have a conversation with local law enforcement authorities about how to handle these cases, before they come up. A protocol needs to be in place, to protect all involved.
Special thanks to Shannon Najmabadi at The Colorado Sun for alerting me to this incident, and for her comprehensive reporting on it. Follow her work @ShannonNajma on Twitter.