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Therapists, Sexting, and the Law

February 27, 2014

By Leslie Durr, PhD, RN, PMHCNS-BC
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The opinions expressed by Psychiatry & Behavioral Health Learning Network bloggers and those providing comments are theirs alone and are not meant to reflect the opinions of the publication.

Even when a psychotherapist wishes to avoid dealing with legal issues, it is not always an easy thing to do. For those who work with teens, an example comes with the issue of teen sexting. 

Sexting involves the practice of creating, sending, and/or posting sexually suggestive images or video via cell phone, email, or over the Internet. And the statistics are eye-opening:  An MTV-AP poll reports more than one in three young adults between ages 18 and 24 have sexted, and one in four teenagers have done the same. (1) 

An example of sexting as a form of cyberbullying would be when a teen seeking revenge over a broken relationship sends nude photographs of the “ex” to mutual friends or posts them on the Internet for others to view. 

However, the very act of one minor sending a nude or partially nude picture of himself or herself with mutual consent to a romantic interest who is also a minor may snare the teen in the very same legal net for which the child pornography laws were intended. 

The American Civil Liberties Union (ACLU) is working in various jurisdictions to prevent teens from receiving felony charges and being listed as sex offenders in cases of consensual texting. “Because the child pornography laws were not intended to address sexting, the legal consequences for teens engaging in sexting are truly bizarre. Devoted partners sharing an intimate photograph face the same punishment as a bully who maliciously sends a naked picture of an ex to the entire school. Both the consenting teen couple and the bully are Class C felons under the law. If all parties involved were 18 or over, however, there is no crime whatsoever.” (2) 

Each jurisdiction treats teen sexting differently, with more and more writing legislation making teen sexting a misdemeanor. As recently as April of 2013 in my state, Virginia, several teens faced a possible prison sentence of 20 years and registry as sex offenders for sexting alleged consensual sex acts at parties. 

Penalties for Sexting in Virginia

Creating, sending, possessing, and distributing sexual images of a juvenile is a Class 6 felony and carries a minimum prison sentence of five years, with a maximum of 20. Second and subsequent violations may incur longer prison terms. 

A few years ago, before information about this phenomenon made nearly weekly headlines, I received a call from a mother who wanted her 16-year-old son in therapy. But first, she said, she wanted to tell me about the situation before even giving her or her son’s names.  

The boy and his 16-year-old girlfriend had been caught sending nude pictures to each other (no one else) and she wanted to know if I, as a mandated reporter of child abuse*, needed to report this to Child Protective Services. Never having been confronted with this, I said I did not know but would look into it. She declined further contact and I was left wondering the answer to that and if the family had, indeed, found a therapist who readily answered “no”. 

Over the years, I’ve thought about that situation and wondered, is sexting between teens without malicious intent really child abuse requiring reporting?  If consensual sexting is not child abuse, I would not have had to report; but back then the issue was not clear and I think my answer would have had to be ‘yes’. In many ways, I feel lucky to have dodged that complicated issue. 

And I’ve wondered, too, how young people so close to adulthood could do such stupid things that threaten their futures. The answer to that second question will be the next blog. 

Have you encountered the phenomenon of “sexting” in your practice? Do you know your state’s laws on teen sexting? 

*“Mandated reporters are individuals who are required by law to report suspected cases of child abuse and neglect. Although laws vary from state to state, generally, any person who has contact with children in a professional capacity is a mandated reporter. Mandated reporters who suspect that abuse is occurring must report it to the state, and failure to do so could result in fines, sanctions, civil litigation, and criminal prosecution with the prospect of imprisonment for the mandated reporter.” 

References

1. Cyberbullying, Sexting Widespread, MTV/AP Survey Reveals. Gil Kaufman. Sep 27 2011 9:18 AM EDT

2. SEXTING AND THE LAW - PRESS SEND TO TURN TEENAGERS INTO REGISTERED SEX OFFENDERS blog posted by Brian Alseth, ACLU-WA Technology and Liberty Program. Sep 24, 2010 

Leslie Durr, PhD, RN, PMHCNS-BC is an advanced practice psychiatric-mental health nurse with a private psychotherapy practice in Charlottesville, Virginia.

The views expressed on this blog are solely those of the blog post author and do not necessarily reflect the views of Psych Congress Network or other Psych Congress Network authors. 

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