Wednesday, 5 April 2017

Sexting: Some Notes

Sexting: Some Notes

The BBC reports that:

“In the last year there has been a growing number of young people "sexting" in Jersey, police figures have shown. Sharing indecent images of children is illegal, even when a child sends a picture of themself. In 2013 there was one case of sexting reported to the police, but there have been 17 so far this year.”

And Sarah Gray of the Charity, Love Matters, said:

“We will always encourage young people to consider the social, legal and emotional consequences of sexting because they maybe committing an offence, they may also be suffering in their relationships with other young people. Sexting is very often coercive, its every often indicative of wider sexual pressures they may be feeling."

According to the Oxford English Dictionary, a sext is “The action or practice of sending or exchanging sexually explicit or suggestive messages or images electronically, esp. using a mobile phone.”

The first use of the term goes back to the Daily Telegraph, where a report in 2005 included the sentence:

“A telling aspect of his sexual farragos is the use of his mobile for sexting (texting)”

The verb “sexting” is described as “To send (a person) a sexually explicit or suggestive message or image electronically, typically using a mobile phone; to send or exchange (sexually suggestive or explicit content) in this way.”

The OED says that it is “formed within English, by derivation”, coming from the words “sex” and “texting”.

The 2011 study “Sexting in the Schoolyard” by NK Segool and TD Crespi, published by the National Association of School Psychologists notes that:

"Sexting" can be defined as the act of sending, receiving, or retaining sexually explicit text messages, pictures, or video using cellular phone or other digital media technology.”

They also note that it is a deliberate action:

“An essential component of a sext is that it is produced and disseminated with the full volition of the person depicted. As such, sext messages differ fundamentally from sexually explicit language or images being distributed without a person's consent.”

And they note the dangers of harm:

“The potentially harmful effects of sexting also extend well beyond the courtroom, with many teens experiencing emotional distress, bullying, alienation, and loss of privacy following the transmission of intimate images beyond the originally intended recipient”

Probably the earliest form of major fallout from a rashly sent email was that between Claire Swire and Bradley Chait which predates the use of the term sexting, but was very much about sexually explicit emails between the two which happened in 2000.

Snopes summarises it thus:

“Swire sent an e-mail joke to Chait and others. The joke prompted a private e-conversation between the pair, during which Swire made what would later prove to be embarrassing revelations about the palatability of Chait’s bodily fluids and beauty tips concerning other uses for the substance in question. Flush with pride about his conquest and her glowing endorsements, Chait shared the exchange with some of his best buddies, who mailed the whole thing to additional acquaintances, thus setting the Swire/Chait correspondence loose on the Internet.”

Because of its wide coverage, the incident is often cited as an example of the problems that staff can cause to the reputation of their employer (and the risk of embarrassment and disciplinary measures) by forwarding personal or questionable material

But it also shows the dangers to the individuals involved. As the BBC reported later that year:

“The young woman behind a revealing e-mail seen by millions is still in hiding as five top law firm employees accused of circulating the correspondence await their fate.” Her mother said: “"She is horrified by all this. She has gone into hiding. I don't blame her. Would you stick around after something like that?"

“Sexting in the Schoolyard” notes that with younger children, the risk can be greater because the understanding is less:

“Children's reasoning and judgment skills are still developing throughout adolescence, and poor planning, decision-making, and lack of understanding of the risks and implications of one's actions are commonplace (Steinberg & Scott, 2003). Few teens consider that a single text message can be forwarded in rapid succession by recipients, resulting in the widespread distribution of an image intended to be a private exchange between two individuals.”

This was also the conclusion of Reid McEllrath writing in the Washington Law Review:

"One explanation as to why teenagers are more susceptible to sexting and its ill effects might be the underdevelopment of their psychosocial maturity."

"Juveniles' psychosocial immaturity leads them to be heavily influenced by short-term rewards. Research shows that teenagers lack many decision-making skills they will possess as adults, including the ability to consider the consequences of their actions. During adolescence, the brain begins its final stages of maturation and continues to rapidly develop well into a person's early twenties, concluding around the age of twenty-five. The prefrontal cortex, which governs the "executive functions" of reasoning-advanced thought and impulse control-is the final area of the human brain to mature. Although teenagers' cognitive capacities approximate an adult's, their judgment and actual decision-making may differ from an adult's based on teenagers' psychosocial immaturity. This can make teenagers deficient in their decision-making capacity."

"Psychosocial immaturity also increases the likelihood of being influenced by peers. Research shows that juveniles lacking in psychosocial maturity generally are more responsive to peer pressure, more impulsive, less future-oriented, and place less weight on risk in risk-reward calculus. Conversely, controlling impulses, planning ahead, and resisting peer influence increases from pre-adolescence to post-adolescence, and sometimes continues to increase into adulthood. This data may suggest that if juveniles are driven more by immediate reward than by fear of risk, juveniles are less likely to rely on the possible consequences of their actions when making decisions and are more likely to consider only immediate rewards like peer approval."

"Even when juveniles know of possible legal consequences, they often neither care nor consider legal consequences a serious threat when sexting. A study of high school students found that over a third of the students who reported sending a sexually explicit picture did so despite knowing that, if they were apprehended for the picture, serious legal consequences would follow. Another survey found that fifty-four percent of respondents did not consider getting in trouble with the law a concern when sending or posting "sexy" pictures or videos of themselves. This further illustrates that juveniles lack risk consideration when weighing the long-term risks and rewards of sexting. Without full psychosocial maturity, juveniles are less likely to competently contemplate the consequences of their actions."

Adele Hasinoff, an assistant professor of communications at the University of Colorado, has written on the subject and argues that “Rather than focusing education programs on telling kids not to sext, we could move the focus toward emphasizing that it is immoral to share private information without consent”

Kerri Wachter, writing in Clinical Psychiatry News, also warns that we must be careful to understanding sexting as lying on a spectrum of actions rather than just one kind of action, usually described in the most extreme terms.

In a study of sexting by Janis Wolak in America which collected data for the Third National Juvenile Online Victimization Study, they decided to focus on the extreme end to see how common that was:

“Because the term "sexting" is imprecise in its meaning, the researchers used a more specific expression - youth-produced sexual images. Specifically, the agencies were asked if they handled any cases from 2008 or 2009 that involved sexual images created by minors (aged 17 or younger) and if these images were or could have been considered child pornography under the statutes of the local jurisdiction.”

In conclusion, Wachter notes this:

“Major Finding: The percentage of youth who have, in the past year, appeared in or created sexually explicit sexual images that potentially violate child pornography laws is low (1%). But if sexting is defined as appearing in, creating, or receiving sexually suggestive rather than explicit images, the survey reveals 9.6% of youth who used the Internet in the past year were involved in this way.”

It is important, therefore, to keep a sense of proportion about the kind of activity which can take place under the umbrella term “sexting”, and to note that the current news reports refer specifically to explicit images, about which the law is very clear:

“By sending indecent pictures of a person under 16 on to someone else you could be breaking the law.”

"If a teenager were to have in their possession an indecent image of another minor, they would technically be in possession of an indecent image of a child, which is an offence under Jersey law."

This latter statement is perhaps lacking in some explanation. Receiving a transmitted image by a device is not a voluntary act on behalf of the recipient but merely a result of the sender's action. As the UK's Crown Prosecution Service notes, if that is the case, and the image is not retained, this is not deemed to be "possession" under the law as a prosecutable offence:

"The defence is made out if the defendant proves that the photograph in question was sent to him without any prior request by him or on his behalf and that he did not keep it for an unreasonable time. "

McEllrath, in theWashington Law review suggests that many legislatures adopt regimes which are too punitive and do not take into account the immaturity of the offender:

"Juveniles are often treated differently than adults in the courts due to their immaturity and a perceived lesser culpability. As such, they should also be treated differently in the context of juvenile sexting. Juveniles are more capable of character reform than adults and, because of this capacity to change, punishments should distinguish between adults and juveniles."

"Because psychosocial immaturity often prevents teenagers from considering the consequences of their conduct, the first tier should assign mild punishments for those engaged in non-alicious sexting. However, because cyberbullying involves malicious intent, the second tier should assign elevated punishments for those engaged in this conduct. In these situations, diversion classes or misdemeanors may not be severe enough to punish the malicious conduct." 

"Differentiating between malicious action and non-malicious action by using two tiers would be preferable. The first tier should include diversion or a misdemeanor charge as a general punishment for juvenile sexting. The second tier, to address cyberbullying, should include any sexting that involved malicious intent. This tier should have a stricter punishment, charging cyberbullying juveniles with a felony. Neither tier should include sex offender registration because juveniles are less mature than adults and more likely to be reformed, making a severe and long-term punishment like sex offender registration-with its lifelong consequences inappropriate for either tier."

This is certainly something which Kristina Moore, as Minister responsible in this area, should consider. In the meantime, it is good to hear that Jersey police are taking the view that cautioning with words of advice is better as an approach than to be too heavy-handed.

See also


Oxford English Dictionary, 3rd Edition
Keeping Up with Technology: Why a Flexible Juvenile Sexting Statute Is Needed to Prevent Overly Severe Punishment in Washington State, McEllrath, Reid, Washington Law Review, October 1, 2014

Teen Behavior Involving Sexting Varies Widely, Wachter, Kerri , Clinical Psychiatry News, February 2012

The Misguided War on Sexting: America Is Taking a Punitive Approach to Teens Who Send Each Other Explicit Messages-And It's Backfiring, Berlatsky, Noah, Reason, May 2015

Sexting in the Schoolyard, Segool, Natasha K.; Crespi, Tony D., National Association of School Psychologists. Communique, June 2011

Sexting among Young People: Perceptions and PracticesBy Lee, Murray; Crofts, Thomas et al, Trends & Issues in Crime and Criminal Justice, November 1, 2015

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