Florida Legalizes Teen Sexting By Trying To Outlaw Teen Sexting

from the breaking-something-that's-fixing-something-that-ain't-broken dept

Tue, Feb 3rd 2015 9:39am — Tim Cushing

When laws intersect with human sexuality, they usually do so badly. Teens are sexting -- something many people believe is normal, but many, many more people believe is somehow wrong. This sort of behavior has existed since the introduction of the Polaroid camera, but with nearly every teen in possession of both a camera and a transmission device, the trading of sexually explicit photos has increased exponentially.

Sure, some sexting leads to bullying or the uninvited sharing of supposedly "private" photos, but for the most part, it seems to be consensual behavior. The Problem That (Mostly) Isn't is usually tackled by criminalizing the behavior. What law enforcement and legislators fail to understand is that criminalizing normal human behavior just creates more criminals, rather than curbing the undesired behavior.

One "solution" has been to twist sexual offense laws into incredibly abnormal shapes to fit this "crime." If Teen Boy Doe takes a photo of his own genitalia and sends it to a willing recipient, he's just created and distributed child pornography. Anyone who receives it is now in possession of child pornography. Everyone involved now has a chance to kiss their futures goodbye by taking a trip to the sexual offender registry. Turning a child into his or her own pornographer boggles the mind, and yet, some feel this is a perfectly acceptable response.

The other "fix" is legislation. Armed with more good intentions than functioning brain cells (and backed by parents who feel the government is better equipped to raise their children), legislators craft specific laws to criminalize normal human behavior. It's only slightly better than the first option, in that it usually doesn't result in people being accused of producing their own child pornography, directed by and starring themselves. But it still doesn't fix the "problem," and it still results in criminal records for minors who haven't really done anything criminal.

If you're Florida -- the United States' mentally unstable, pill-addled uncle -- you fuck it up completely. (via Reason)

Here’s the sorry story of the state’s latest legal mishap: In 2011, the legislature passed a “sexting” statute barring minors from sending images of nudity (their own or somebody else’s) to other minors. The first offense would qualify as only a civil infraction; minors who violated the law would merely have to perform court-ordered community service or pay a $60 fine. The second and third offenses, however, would qualify as misdemeanors, while the fourth offense would qualify as a felony.

While Florida legislators congratulated each other on their savvy solution -- one that would deter sexting without overcriminalizing it -- they failed to notice a glaring loophole in the newly-minted law. This didn't become apparent until the state tried to enforce it by using it against a student who took a vagina selfie (out of "boredom") and sent it to others.

Florida law doesn’t give any court jurisdiction of civil infractions by juveniles—as opposed to criminal infractions—and the sexting statute doesn’t grant any court this kind of jurisdiction. Accordingly, no court in the state currently has legal authority to hear a case involving minors sexting.

So, if the first infraction is always a civil matter -- and the courts can't touch a civil case involving a juvenile -- this means no juvenile can ever be prosecuted under Florida's anti-sexting law. It's the law that isn't, which indicates it really shouldn't have been written in the first place.

[B]ecause that first offense is a civil infraction—and because no court can hear civil cases involving minors—it is legally impossible for any minor to be charged with that first offense. As a result, there simply cannot be a second, third, or fourth offense. Sexting between teens—even sexting images of a minor’s nude body—is now functionally legal in Florida.

No doubt legislators are now rushing back to their DoSomethingmobiles to "fix" a law that shouldn't have been enacted in the first place. And whatever they slap into place with the glue of good intentions and old-fashioned moral panic will likely be worse than this inadvertent legalization of teen sexting.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: florida, laws, sexting, teens

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

DB (profile), 3 Feb 2015 @ 10:09am

It's an almost ideal situation right now: it's nominally illegal, for those that want to 'do something'.

And it can't be penalized, avoiding most of the damage of the law.
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 10:23am

From the start of puberty to the time you're married...you're horny...It's just apart of being human.

It's no surprise that some of it escapes on to the web but punishing children for 'pedophilia' aka 'sextexting' does nothing but ruin lives.

Can you imagin applying for a job or moving into new neighborhood and being required by law to notify people that when you were 15 that you got busted for sexting?

Our system of law is fucked!
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 10:33am

you are mistaken
The law worked exactly as intended. The politicians looked like they were doing something while at the same time making it possible for parents to raise their kids as they please.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 3 Feb 2015 @ 10:34am

Re:
And everyone can say they voted to "do something." It's kind of brilliant.
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 10:38am

no no no.

Leave the law as is. Let's be honest, we all did stupid stuff as a teen, but now it can stick around and be spread even years later.

the Florida law makers have done something genius. they have make something illegal, but also ensured that no one can ever be prosecuted for it. that way parents and educators can scare kids into not doing something stupid, but at the same time, when the kids do it any way, their life can't be ruined.
[ link to this | view in thread ]
John Fenderson (profile), 3 Feb 2015 @ 10:48am

Lets get to the root of the problem
...and just outlaw teen masturbation. It is, after all, sexual abuse of a minor and the main reason why those teens appreciate naughty pics.
[ link to this | view in thread ]
Fuck, 3 Feb 2015 @ 10:51am

Fuck
Nice. Another unnecessary "Fuck". Keep it classy, boys. ;)
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 11:04am

Re: Lets get to the root of the problem
I still think the real answer is to outlaw children - without children, child porn (along with child molestation, child prostitution, child abuse, etc.) will quickly diminish. Think of the children!
[ link to this | view in thread ]
Blackfiredragon13 (profile), 3 Feb 2015 @ 11:16am

Re:
With a bit of luck all these kids being prosecuted as sex offenders will dilute the terminology
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 11:18am

Re: Re: Lets get to the root of the problem
more like don't think of the children since there aren't anymore around.
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 11:37am

Sexting between minors
"Sexting between teens—even sexting images of a minor’s nude body—is now functionally legal in Florida."

As it should be.
[ link to this | view in thread ]
John85851 (profile), 3 Feb 2015 @ 11:41am

Separation of power
Doesn't this just prove the separation of powers?
The legislature writes the laws and lets the police figure out how to enforce it, and they both let the court figure out if the law is even legal or enforceable.

It would be nice if the legislature tried to pass enforceable, good laws in the first place, but that would be too hard compared to "doing something" about an issue.
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 12:23pm

Re: Re: Lets get to the root of the problem
Nah, there's a better solution then outlawing kids. We need to outlaw Heterosexual sex of all kind!

100% of crimes are a direct result of Heterosexual sex! Ban heterosexual sex and we end all crime!
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 1:13pm

How's that again?
...Florida law doesn’t give any court jurisdiction of civil infractions by juveniles...

ANY civil infraction??? (not just 'sexting')
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 2:15pm

So...
If a 17 year old girl sends a sext to her 17 year old boyfriend, that's OK. But, if either of them turns 18 before the other it then becomes a felony? Sounds about right.
[ link to this | view in thread ]
KRA, 3 Feb 2015 @ 2:22pm

Re: Re:
With a bit of luck all these kids being prosecuted as sex offenders will dilute the terminology

We don't need to dilute the term "sex offender". We need to make sure that the term only applies to those who actually commit or support sexual assault or sexual abuse. I have no problem with rapists, child molesters, and traders in kiddie porn having the label sex offender. I'd have no problem with branding them with a large "R" on their foreheads. They're scum.
[ link to this | view in thread ]
Anonymous Coward, 3 Feb 2015 @ 2:34pm

Re: So...
Theres a a nice birthday present for the first one to turn 18, sex offender charges.
[ link to this | view in thread ]
Jigsy, 3 Feb 2015 @ 2:37pm

I got to thinking a little while ago...

Most of the Western World (E.g. Australia, The UK, etc.) classifies lolicon (drawings) as "child pornography," which is an incredibly asinine thing to do.

There was one doujin I viewed which featured a character who was probably about ten to 12 - taking a photo of "herself" masturbating, and uploading it to some kind of social networking site.

Now, considering the fact we ruin young adults lives for uploding naked selfies of themselves, would this mean that the authorities would have to try and charge the drawing with manufacturing and distributing "child pornography?"
[ link to this | view in thread ]
John Fenderson (profile), 3 Feb 2015 @ 3:08pm

Re: Re: Re:
The term "sex offender" is already well diluted. The fact that people are added to the sex offender registries for trivial offenses such as public urination has put the last nail in that coffin.
[ link to this | view in thread ]
orbitalinsertion (profile), 3 Feb 2015 @ 3:21pm

Re:
Only, you can be dragged down to the local cop shop repeatedly upon complaints. Or cops snooping phones at every opportunity, which they a wont to do. Never mind what is legal, functionally legal, or illegal.
[ link to this | view in thread ]
Rekrul, 3 Feb 2015 @ 3:22pm

This country really needs to give the law books an enema and flush out about 99% of the laws related to sex.
[ link to this | view in thread ]
streetlight (profile), 3 Feb 2015 @ 3:23pm

Sounds like amateurs writing laws
If those writing these laws are lawyers they're probably either amateurs or bad lawyers, else they would be working for a law firm making $650 + per billable hour. Either way, they are incompetent.
[ link to this | view in thread ]
orbitalinsertion (profile), 3 Feb 2015 @ 3:26pm

Re: How's that again?
Now we will be beset with roving tort gangs of minors upon the publications of this late discovery. Probably why lots of places have criminal mischief laws for things that are really civil torts.
[ link to this | view in thread ]
orbitalinsertion (profile), 3 Feb 2015 @ 3:28pm

To each his own
The only thing I found unnecessary was "supposedly "private"".
[ link to this | view in thread ]
SAWilkus (profile), 3 Feb 2015 @ 7:40pm

Florida law against texting
This reminds me of the old testament introducing the law on how to treat a stubborn and rebellious son (Deuteronomy 21:18-21), according to Jewish tradition, both parents must speak with one voice, in denouncing their son to the elders of the community. Then the elders are permitted to son the child.

This was the first time in history that the capital authority over a father's son was taken from the father and distributed to include the mother and the execution was to be by the community.

According to tradition, there is no way for the two parents to speak in "one voice" so that the conditions of the punishment can never and have never been met.

So in creating a law that can never be executed, it actually made it illegal for the first time in history for a parent to legally kill their child.

There is also the supreme court case of Marbury v. Madison (1803) in which the court struck down a law giving them power to appoint lower court judges. Congress tried to give them that appointive power but in ruling against it, the court gave themselves the much greater power to rule on the constitutionality of laws.

We can't ascribe internality to a group decision, but it sometimes shows greater wisdom than the people making the laws.
[ link to this | view in thread ]
nasch (profile), 3 Feb 2015 @ 8:13pm

Teens
The Problem That (Mostly) Isn't is usually tackled by criminalizing the behavior.

That sounds like a great idea, because if there's one thing I know about teens, it's that they always want to follow the rules and do what authority figures tell them to.
[ link to this | view in thread ]
toyotabedzrock (profile), 3 Feb 2015 @ 8:24pm

This isn't about big government or nanny state, it is moral panic of parents who think their child is an object they own and in general old people.
[ link to this | view in thread ]
Ninja (profile), 4 Feb 2015 @ 2:06am

Re:
I like it. Pass legislation to calm the moralist, scared y morons with something that makes the law inert. So what was the issue this time? Epic wisdom or sheer luck?
[ link to this | view in thread ]
Capt ICE Enforcer, 4 Feb 2015 @ 4:33am

Great Law
Seems like a great law to me, it protects the public while allowing politicians to feel good about doing something useful.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2015 @ 5:59am

Re: Re: Lets get to the root of the problem
I think Homer Simpson said something like that:

"If kids are so innocent, why is everything bad named after them? Acting childish, kidnapping, child abuse"
[ link to this | view in thread ]
Crazy Canuck, 4 Feb 2015 @ 9:23am

Maybe I might be way too generous in giving the politicians the benefit of the doubt but is it possible that one or more of the politicians that drafted the bill may have fully understood this loophole and ran with it knowing the benefit of not potentially ruining juvenile lives while also being able to avoid the moral outrage?
[ link to this | view in thread ]
The Devil, 4 Feb 2015 @ 10:46pm

Murder by Barack Obama
The longer the president waits to give back the body of JC from 28262 the greater the Hurricane destruction will be in the future. Your president, his wife and children are going to hell for how the operate! I look forward to the destruction he will bring all of you on the EAST coast for this murder. HELL is forever BARACK OBAMA!
[ link to this | view in thread ]
res, 5 Feb 2015 @ 1:14pm

sexting -
just wait until the perps are 18yrs old and they can be prosecuted for child porn.
[ link to this | view in thread ]