On October 25, 2012,Pennsylvania joined a growing number of states in enacting Act 198 of 2012 that tailors the punishment for youth involved in “sexting” rather than relying on existing child pornography laws.  Merriam-Webster On-Line Dictionary indicates that “sexting” was first used in 2007.  Act 198 defines “sexting by minors” as when a minor knowingly transmits an electronic communication or disseminates a depiction of themselves or another minor, or possesses a depiction of another minor, engaged in sexually explicit conduct.  Act 198 was originally authored as House Bill 815 by State Representative Seth M. Grove after two teenage girls at Spring Grove High Schoo lsent nude pictures of themselves to the boys’ soccer team in 2008.  In 2009, three teenage girls at Greensburg Salem High School in Western Pennsylvania sent nude or semi-nude cell phone pictures of themselves to their boyfriends.  Both the girls and their boyfriends were charged with child pornography, a felony that carries draconian sentences and life-long consequences such as registering as a sex offender.  Similarly, a recent 2012 case, originating in the Lehigh County Court of Common Pleas, involved charges of sexual abuse of children against a teenager who had posted a video on her Facebook page of two other teens engaged in a consensual sexual act.  Judge Robert L. Steinberg, in the Lehigh County case, called the use of child pornography statutes in sexting cases a “round hole/square peg approach.”  Judge Steinberg recommended that the solution to sexting, which he referred to as part of the “world of the new millennium teen”, should be addressed by the legislature.

Under Act 198, youths 12-17 years of age who send, view or disseminate sexually explicit images can be charged with a misdemeanor or summary offense, depending on the circumstances.  Rather than incarceration and future devastating ramifications, offenders would be permitted to enter a diversionary educational program and afterward have their records expunged. Pennsylvania’s new legislation takes effect on December 24, 2012.  The new law is based on a tiered system.  If two juveniles consensually exchange photos, it would be a summary offense similar to underage drinking.  Someone who receives a picture and transmits it to others could be charged with a third-degree misdemeanor.  Finally, using a sexually explicit photograph to harass or cyber-bully another is a second degree misdemeanor.  Sexting of anyone under 12-years of age could still lead to child pornography charges.

With Act 198, the punishment for sexting now fits the crime.  However, as a criminal statute, it applies to both off campus and on campus conduct.  For sexting that occurs on school grounds or at school events, your school district may wish to re-visit your policies on bullying and student codes of conduct to incorporate a tiered discipline approach similar to the tiered criminal penalties in Act 198.  Of course, as with other matters of student discipline, students must be given “fair notice” of the disciplinary consequences for “sexting,” by including them in student handbooks and reviewing them at student assemblies.  Although “sexting” became known in 2007, every indication is that it will remain an unfortunate part of the new millennium issues confronting school districts.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.