One Wisconsin attorney says state lawmakers should look at bringing down penalties for sexting when two minors are involved.
Dave Stegall, Lawton & Cates criminal defense attorney, said unlike other states, Wisconsin currently does not have a specific statute to guide prosecutors in minor involved sexting cases. Instead, the state is left to decide whether or not to charge a person for child pornography, a “big time felony” that results in a mandatory prison sentence and registration as a sex offender.
Grant Humerickhouse, Madison Police Department detective, said under state statutes, minors who have taken naked pictures are considered victims if those pictures are under someone else’s possession.
That means that even if the pictures are exchanged consensually and law enforcement discovers them, someone 18 or older could be charged with a crime as severe as child pornography, Humerickhouse said.
Humerickhouse said the case goes to the district attorney’s office, where prosecutors determine the “validity of the case” and can sometimes choose to pursue lesser charges.
Still, there are often dangers to sexting, even in a consensual relationship, such as a relationship ending and the ex-partner still possessing the ability to spread the explicit images, Humerickhouse said.
Humerickhouse said sexting can turn “tragic” when minors send nude photographs that are then used against them.
“People drop out of school because they feel like it can never be erased,” Humerickhouse said.
North Carolina, a state with similar statutes guiding minor-involved sexting cases, made national news in early September when two minors were both charged with child pornography after law enforcement discovered explicit images on their cell phones.
Stegall said he has encountered cases like the one in North Carolina. Though he has swayed prosecutors to decide against felony charges, those severe charges remain a threat.
Stegall said consultation calls from parents whose children are accused of sexting usually result in the parents being “blown away” by the possibility of a child pornography charge.
He said there is little awareness surrounding the dangers for both parents and children, but communication on the topic between them would be beneficial.
Humerickhouse is on MPD’s Cyber Safety Team, which stresses the importance of considering the danger of sexting before engaging in it.
“It is easy to succumb to that pressure or to decide to share the intimate part of somebody’s life with somebody else,” he said. “But what we see a lot of times is … that instant of ‘Is this a good idea?’ isn’t happening before the send button is hit.”
Stegall said he is uncertain whether or not the state government would ever consider passing a statute specifically designed to prosecute minors involved in sexting, but that it could be helpful for prosecutors dealing with the cases.
He said classifying it as a misdemeanor rather than a potential felony could make the process less extreme. He also suggested creating an affirmative legal defense, which already exists in some states, for someone who deletes an explicit image quickly after receiving it in order to protect people who did not want to receive it in the first place.
“A good amount of time, prosecutors don’t pursue [child pornography] charges,” Humerickhouse said. “But other times when they do, the consequences are pretty drastic, or certainly can be.”
