Can minors exchange nude photos by sexting? What about adults?
Full Question:
Answer:
Sexting has been defined as "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." N. Pieter M. O'Leary and Kathryn M. Caretti, When Clean Kids Take Dirty Pictures: The SextingPhenomenon and Its Impact on American Teenagers, the Criminal Justice System, and Parental Responsibility, Child. Legal Rts. J., Winter 2009, at 65, 66 (citing Miller v. Skumanick, 605 F. Supp. 2d 634, 637 (M.D. Pa. 2009)). Many jurisdictions have turned to various existing statutes in an effort to find sexting illegal. Id. at 71-72.
Yes, it can be a crime between minors. Child pornography laws in most states would apply to this. If between an adult and a minor it can even be a more serious crime. One of the reasons sexting is an issue between minors is that the child pornography laws were written with sexual predators in mine and they really did not contemplate minors or cell phones. Due to this the laws many be changed in the future but generally for now it is a crime between minors.
Another issue that arises is when a sex photo that was sent between minors ends up in the possession of an adult. In this case the adult can be charged with possessing child pornography. Sometimes the sexual images are also transferred to other people, placed online and used to embarrass and harass the other person which can result into bullying and other problems.
The resulting charge related to sexting is usually a felony with serious penalties. Some states are changing the law if the crime is between minors to a misdemeanor but since sexting is new laws are evolving.
Sending a nude or sexual image to another person without the consent of that person, even between adults, can he considered harassment under the law of some states. An example of harassment law reads: "Harassment, which includes a person who, with the intent to harass, communicates to or about such other person any lewd, lascivious,threatening or obscene words, language, drawings or caricatures."
Some state laws on sexting are below.
Florida Sexting Laws
Florida Statutes
Title XLVI. CRIMES
Chapter 847. OBSCENITY
Current through Chapter 269 of the 2016 Legislative Session
§ 847.0141. Sexting; prohibited acts; penalties
(1) A minor commits the offense of sexting if he or she knowingly:(a) Uses a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity, as defined in s. 847.001(9), and is harmful to minors, as defined in s. 847.001(6).
(b) Possesses a photograph or video of any person that was transmitted or distributed by another minor which depicts nudity, as defined in s. 847.001(9), and is harmful to minors, as defined in s. 847.001(6). A minor does not violate this paragraph if all of the following apply:1. The minor did not solicit the photograph or video.
2. The minor took reasonable steps to report the photograph or video to the minor's legal guardian or to a school or law enforcement official.
3. The minor did not transmit or distribute the photograph or video to a third party.(2)
(a) The transmission or distribution of multiple photographs or videos prohibited by paragraph (1)(a) is a single offense if the photographs or videos were transmitted or distributed within the same 24-hour period.
(b) The possession of multiple photographs or videos that were transmitted or distributed by a minor prohibited by paragraph (1)(b) is a single offense if the photographs or videos were transmitted or distributed by a minor in the same 24-hour period.(3) A minor who violates subsection
(1): (a) Commits a noncriminal violation for a first violation. The minor must sign and accept a citation indicating a promise to appear before the juvenile court. In lieu of appearing in court, the minor may complete 8 hours of community service work, pay a $60 civil penalty, or participate in a cyber-safety program if such a program is locally available. The minor must satisfy any penalty within 30 days after receipt of the citation.
1. A citation issued to a minor under this subsection must be in a form prescribed by the issuing law enforcement agency, must be signed by the minor, and must contain all of the following:
a. The date and time of issuance.
b. The name and address of the minor to whom the citation is issued.
c. A thumbprint of the minor to whom the citation is issued.
d. Identification of the noncriminal violation and the time it was committed.
e. The facts constituting reasonable cause.
f. The specific section of law violated.
g. The name and authority of the citing officer.
h. The procedures that the minor must follow to contest the citation, perform the required community service, pay the civil penalty, or participate in a cyber-safety program.2. If the citation is contested and the court determines that the minor committed a noncriminal violation under this section, the court may order the minor to perform 8 hours of community service, pay a $60 civil penalty, or participate in a cyber-safety program, or any combination thereof.
3. A minor who fails to comply with the citation waives his or her right to contest it, and the court may impose any of the penalties identified in subparagraph 2. or issue an order to show cause. Upon a finding of contempt, the court may impose additional age-appropriate penalties, which may include issuance of an order to the Department of Highway Safety and Motor Vehicles to withhold issuance of or suspend the driver license or driving privilege of the minor for 30 consecutive days. However, the court may not impose incarceration.
(b) Commits a misdemeanor of the first degree for a violation that occurs after the minor has been found to have committed a noncriminal violation for sexting or has satisfied the penalty imposed in lieu of a court appearance as provided in paragraph (a), punishable as provided in s. 775.082 or s. 775.083.
(c) Commits a felony of the third degree for a violation that occurs after the minor has been found to have committed a misdemeanor of the first degree for sexting, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.(4) This section does not prohibit the prosecution of a minor for a violation of any law of this state if the photograph or video that depicts nudity also includes the depiction of sexual conduct or sexual excitement, and does not prohibit the prosecution of a minor for stalking under s. 784.048.
(5) As used in this section, the term "found to have committed" means a determination of guilt that is the result of a plea or trial, or a finding of delinquency that is the result of a plea or an adjudicatory hearing, regardless of whether adjudication is withheld.
(6) Eighty percent of all civil penalties received by a juvenile court pursuant to this section shall be remitted by the clerk of the court to the county commission to provide training on cyber-safety for minors. The remaining 20 percent shall remain with the clerk of the court to defray administrative costs.
South Dakota
South Dakota Statutes
Title 26. MINORS
Chapter 10. Offenses By And Against Minors
Current through 2016 Legislative Session
§ 26-10-33. Juvenile sexting prohibited-Violation as misdemeanorNo minor, as defined in subdivision 26-7A-1(21), may intentionally create, produce, distribute, present, transmit, post, exchange, disseminate, or possess, through any computer or digital media, any photograph or digitized image or any visual depiction of a minor in any condition of nudity, as defined in subdivision 22-24A-2(9), or involved in any prohibited sexual act, as defined in subdivision 22-24A-2(16). Any violation of this section constitutes the offense of juvenile sexting, which is a Class 1 misdemeanor.
§ 26-10-34. Defenses to juvenile sextingIt is an affirmative defense to the offense of juvenile sexting that the minor has not solicited the visual depiction, that the minor does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the visual depiction, and that the minor deletes or destroys the visual depiction within a reasonable time after receipt. It is an affirmative defense to the offense of juvenile sexting that the visual depiction is of a single minor, created by that minor, who does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the visual depiction.
§ 26-10-35. Depiction of person charged not a defense to juvenile sextingIt is not a defense to the offense of juvenile sexting that the visual depiction is of the person charged.
Lousiana
Louisiana Statutes
Revised Statutes
Title 14. Criminal law
Chapter 1. CRIMINAL CODE
Part V. OFFENSES AFFECTING THE PUBLIC MORALS
Subpart A. OFFENSES AFFECTING SEXUAL IMMORALITY
1. SEXUAL OFFENSES AFFECTING MINORS
Current with changes from the 2016 Second Extraordinary Legislative Session Through Act 17
§ 14:81.1.1. "Sexting"; prohibited acts; penalties
A.(1) No person under the age of seventeen years shall knowingly and voluntarily use a computer or telecommunication device to transmit an indecent visual depiction of himself to another person.
(2) No person under the age of seventeen years shall knowingly possess or transmit an indecent visual depiction that was transmitted by another under the age of seventeen years in violation of the provisions of Paragraph (1) of this Subsection.B. For purposes of this Section:
(1) "Indecent visual depiction" means any photograph, videotape, film, or other reproduction of a person under the age of seventeen years engaging in sexually explicit conduct, and includes data stored on any computer, telecommunication device, or other electronic storage media which is capable of conversion into a visual image.
(2) "Sexually explicit conduct" means masturbation or lewd exhibition of the genitals, pubic hair, anus, vulva, or female breast nipples of a person under the age of seventeen years.
(3) "Telecommunication device" means an analog or digital electronic device which processes data, telephonic, video, or sound transmission as part of any system involved in the sending or receiving of voice, sound, data, or video transmissions.
(4) "Transmit" means to give, distribute, transfer, transmute, circulate, or disseminate by use of a computer or telecommunication device.C. Any offense committed by use of a computer or telecommunication device as set forth in this Section shall be deemed to have been committed at either the place from which the indecent visual depiction was transmitted or at the place where the indecent visual depiction was received.
D.(1) For a violation of the provisions of Paragraph (A)(1) of this Section, the offender's disposition shall be governed exclusively by the provisions of Title VII of the Louisiana Children's Code.
(2)(a) For a first offense in violation of Paragraph (A)(2) of this Section, the offender shall be fined not less than one hundred dollars nor more than two hundred fifty dollars, imprisoned for not more than ten days, or both. Imposition or execution of the sentence shall not be suspended unless the offender is placed on probation with a minimum condition that he perform two eight-hour days of court-approved community service.
(b) For a second offense in violation of Paragraph (A)(2) of this Section, the offender shall be fined not less than two hundred fifty dollars nor more than five hundred dollars, imprisoned for not less than ten days nor more than thirty days, or both. Imposition or execution of the sentence shall not be suspended unless the offender is placed on probation with a minimum condition that he perform five eight-hour days of court-approved community service.
(c) For a third or any subsequent offense in violation of Paragraph (A)(2) of this Section, the offender shall be fined not less than five hundred dollars nor more than seven hundred fifty dollars, imprisoned for not less than thirty days nor more than six months, or both. Imposition or execution of the sentence shall not be suspended unless the offender is placed on probation with a minimum condition that he perform ten eight-hour days of court-approved community service.
West Virginia
West Virginia Statutes
Chapter 49. CHILD WELFARE
Article 4. COURT ACTIONS
Part VII. Juvenile Proceedings
Current through First Special Session legislation completed June 14, 2016
§ 49-4-717. Sexting educational diversion program; requirements
(a) Before a juvenile petition is filed for activity proscribed by article eight-a or eight-c, chapter sixty-one of this code, or after probable cause has been found to believe a juvenile has committee a violation thereof, but before an adjudicatory hearing on the petition, the court or a prosecuting attorney may direct or allow a minor who engaged in the activity to participate in an educational diversion program which meets the requirements of subsection (b) of this section. The prosecutor or court may refer the minor to the educational diversion program, as part of a prepetition intervention pursuant to section seven hundred two of this article.
(b) The West Virginia Supreme Court of Appeals may develop an educational diversion program for minors who are accused of activity proscribed by article eight-a or eight-c, chapter sixty-one of this code. As a part of any specialized educational diversion program so developed, the following issues and topics should be included:(1) The legal consequences of and penalties for sharing sexually suggestive or explicit materials, including applicable federal and state statutes;
(2) The nonlegal consequences of sharing sexually suggestive or explicit materials including, but not limited to, the effect on relationships, loss of educational and employment opportunities, and being barred or removed from school programs and extracurricular activities;
(3) How the unique characteristics of cyberspace and the Internet, including searchability, replicability and an infinite audience, can produce long-term and unforeseen consequences for sharing sexually suggestive or explicit materials; and
(4) The connection between bullying and cyber-bullying and minors sharing sexually suggestive or explicit materials.(c) Once a specialized educational diversion program is established by the West Virginia Supreme Court of Appeals consistent with this section, the minor's successful completion of the educational diversion program shall be duly considered by the prosecutor or the court in their respective decisions to either abstain from filing the juvenile petition or to dismiss the juvenile petition, as follows:
(1) If the minor has not previously been judicially determined to be delinquent, and the minor's activities represent a first offense for a violation of section three-b, article eight-c, chapter sixty-one of this code, the minor is not subject to the requirements of that section, as long as he or she successfully completes the educational diversion program; and
(2) If the minor commits a second or subsequent violation of article eight-a or eight-c, chapter sixty-one of this code, the minor's successful completion of the educational diversion program may be considered as a factor to be considered by the prosecutor and court in deciding to not file a petition or to dismiss a petition, upon successful completion of an improvement plan established by the court.
Chapter 61 Articles 8A and 8B Table of Contents are below.
Article 8A. PREPARATION, DISTRIBUTION OR EXHIBITION OF OBSCENE MATTER TO MINORS [Combined]
§ 61-8A-1. Definitions
§ 61-8A-2. Distribution and display to minor of obscene matter; penalties; defenses
§ 61-8A-3. Exemptions from criminal liability
§ 61-8A-4. Use of obscene matter with intent to seduce minor
§ 61-8A-5. Employment or use of minor to produce obscene matter or assist in doing sexually explicit conduct; penalties
§ 61-8A-6. Repealed
§ 61-8A-7. Repealed
Article 8B. SEXUAL OFFENSES [Combined]
§ 61-8B-1. Definition of terms
§ 61-8B-2. Lack of consent
§ 61-8B-3. Sexual assault in the first degree
§ 61-8B-4. Sexual assault in the second degree
§ 61-8B-5. Sexual assault in the third degree
§ 61-8B-6. Repealed
§ 61-8B-7. Sexual abuse in the first degree
§ 61-8B-8. Sexual abuse in the second degree
§ 61-8B-9. Sexual abuse in the third degree
§ 61-8B-9a. Mandatory sentence for person committing certain sex offenses against children
§ 61-8B-9b. Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children
§ 61-8B-10. Imposition of sexual acts on persons incarcerated or under supervision; penalties
§ 61-8B-11. Sexual offenses; evidence
§ 61-8B-11a. Convictions for offenses against children
§ 61-8B-12. Same - Defense
§ 61-8B-13. Payment of treatment cost for victim
§ 61-8B-14. Limits on interviews of children eleven years old or less
§ 61-8B-15. Forensic Medical Examination Fund; training of sexual assault nurse examiners
§ 61-8B-16. Payment for costs of forensic medical examination
§ 61-8B-17. Study of reimbursement; recordkeeping; disclosure; confidentiality
§ 61-8B-18. Rule-making authority
Rhode Island
Rhode Island Statutes
Title 11. Criminal Offenses
Chapter 11-9. Children
Current through Public Law 542 of the 2016 Legislative Session
§ 11-9-1.4. Minor electronically disseminating indecent material to another person - "Sexting" prohibited
(a) Definitions as used in this section:(1) "Minor" means any person not having reached eighteen (18) years of age;
(2) "Computer" has the meaning given to that term in § 11-52-1 ;
(3) "Telecommunication device" means an analog or digital electronic device which processes data, telephony, video, or sound transmission as part of any system involved in the sending and/or receiving at a distance of voice, sound, data, and/or video transmissions;
(4) "Indecent visual depiction" means any digital image or digital video of the minor engaging in sexually explicit conduct, and includes data stored on any computer, telecommunication device, or other electronic storage media which is capable of conversion into a visual image;
(5) "Sexually explicit conduct" means actual masturbation or graphic focus on or lascivious exhibition of the nude genitals or pubic area of the minor.(b) No minor shall knowingly and voluntarily and without threat or coercion use a computer or telecommunication device to transmit an indecent visual depiction of himself or herself to another person.
(c) A violation of this section shall be a status offense and referred to the family court.
(d) Any minor adjudicated under subsection (b) shall not be charged under § 11-9-1.3 and, further, shall not be subject to sex offender registration requirements set forth in § 11-37.1-1 et seq., entitled "Sexual Offender Registration and Community Notification Act."
§ 11-9-1.5. Electronically disseminating indecent material to minors prohibited
(a) Definitions as used in this section:(1) "Minor" means any person not having reached eighteen (18) years of age.
(2) "Computer" has the meaning given to that term in § 11-52-1.
(3) "Telecommunication device" means an analog or digital electronic device that processes data, telephone, video, or sound transmission as part of any system involved in the sending and/or receiving at a distance of voice, sound, data, and/or video transmissions.
(4) "Indecent visual depiction" means any digital image or digital video depicting one or more persons engaging in sexually explicit conduct, is obscene as defined in § 11-31-1(b), and includes :(i) Data stored on any computer, telecommunication device, or other electronic storage media that is capable of conversion into a visual image; or
(ii) Digital video depicting sexually explicit conduct transmitted live over a computer online service, Internet service, or local electronic bulletin board service. If a digital image or digital video is part of a larger work, that larger work shall be the subject for the purpose of 11- 31-1(b) analysis.(5) "Sexually explicit conduct" means actual:
(i) Graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal , or lascivious sexual intercourse where the genitals or pubic area of any person is exhibited ;
(ii) Bestiality;
(iii) Masturbation;
(iv) Sadistic or masochistic abuse; or
(v) Graphic or lascivious exhibition of the genitals or pubic area of any person.(b) No person shall knowingly and intentionally use a computer or telecommunication device to transmit an indecent visual depiction to a person he or she knows is, or believes to be, a minor .
(c) No minor shall be charged under this section if his or her conduct falls within §11-9- 1.4, "Minor Electronically Disseminating Indecent Material to Another Person - "Sexting" Prohibited."
(d) No person shall be charged under this section if the minor to whom the indecent visual depiction was transmitted was fifteen (15) years of age or older and the person transmitting the indecent visual depiction was not more then four (4) years older than the minor.
(e) The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.
(f) Those in violation of this section shall be guilty of a felony and subject to imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000), or both.
(g) Those in violation of this section shall be subject to sex offender registration requirements set forth in § 11-37.1-1 et seq., entitled "Sexual Offender Registration and Community Notification Act."
(h) Nothing in this section shall be construed to impose liability upon the following entities as a result of content or information provided by another person:(1) An interactive computer service;
(2) A provider of public or private mobile service; or
(3) A telecommunications network provider.
Arkansas
Arkansas Statutes
Title 5. Criminal Offenses
Subtitle 3. Offenses Involving Families, Dependents, Etc
Chapter 27. Offenses Against Children or Incompetents
Subchapter 6. Computer Crimes Against Minors
Current through 2016 Third Extraordinary Session
§ 5-27-609. Possession of sexually explicit digital material
(a) As used in this section:(1) "Nudity" means a:
(A) Showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering;
(B) Showing of the female breast with less than fully opaque covering of any portion of the female breast below the top of the nipple; or
(C) Depiction of covered male genitals in a discernibly turgid state; and(2)
(A) "Sexually explicit digital material" means any photograph, digitized impact, or visual depiction of a minor:
(i) In any condition of nudity; or
(ii) Involved in any prohibited sexual act.(B) The distribution of sexually explicit digital material by a minor may commonly be referred to as "sexting".
(b) A minor commits the offense of possession of sexually explicit digital material if the minor purposely creates, produces, distributes, presents, transmits, posts, exchanges, disseminates, or possesses through a computer, wireless communication device, or digital media, any sexually explicit digital material.
(c) It is an affirmative defense to the offense of possession of sexually explicit digital material that:(1) A minor:
(A) Has not solicited the sexually explicit digital material;
(B) Does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the sexually explicit digital material; and
(C) Deletes or destroys the sexually explicit digital material upon receipt; or(2) A minor:
(A) Creates a photograph, digitized impact, or visual depiction of himself or herself; and
(B) Does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the photograph, digitized impact, or visual depiction of himself or herself.(d)
(1) Possession of sexually explicit digital material is a Class A misdemeanor.
(2) A minor who pleads guilty or nolo contendere to or is found guilty of violating this section for a first offense may be ordered to eight (8) hours of community service .
Hawaii
Hawaii Statutes
Division 5. CRIMES AND CRIMINAL PROCEEDINGS
Title 37. HAWAII PENAL CODE
Chapter 712. OFFENSES AGAINST PUBLIC HEALTH AND MORALS
Part II. OFFENSES RELATED TO OBSCENITY
Current through Chapter 263 of the 2016 Legislative Session
§ 712-1215.6. Promoting minor-produced sexual images in the second degree
(1) A minor commits the offense of promoting minor-produced sexual images in the second degree if the minor:(a) Knowingly uses a computer, cell phone, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another person a nude photograph or video of a minor or the minor's self; or
(b) Intentionally or knowingly commands, requests, or encourages another minor to use a computer, cell phone, or any other device capable of electronic data transmission or distribution, to transmit to any person a nude photograph or video of a minor or the minor's self.(2) A person, of any age, commits the offense of promoting minor-produced sexual images in the second degree if the person knowingly possesses a nude photograph or video of a minor transmitted or distributed in violation of subsection (1). It is an affirmative defense under this subsection that the person took reasonable steps to destroy or eliminate the nude photograph or video of a minor.
(3) For purposes of this section, a "minor" means any person under eighteen years of age.
(4) Promoting minor-produced sexual images in the second degree is a petty misdemeanor.
Other resources on Sexting
North Carolina Law Review
Volume 46.
46 WAKE FOREST L. REV. 641. HOW PUBLIC SCHOOLS CAN CONSTITUTIONALLY HALT CYBERBULLYING: A MODEL CYBERBULLYING POLICY THAT CONSIDERS FIRST AMENDMENT, DUE PROCESS, AND FOURTH AMENDMENT CHALLENGES
Relevant parts of the law review article above include the following:
Sexting is the sending or receiving of sexually explicit messages, images, or videos between cell phones, or posting them on the Internet (such as on Facebook or MySpace).(fn201) Unfortunately, sexting is becoming all too popular among high school and middle school students.(fn202) These messages are often sent because of romantic interests but can quickly turn into an unforgiving and relentless form of cyberbullying.(fn203) Because many child pornography laws prohibit the distribution of child pornography without exception, minors who sext each other can be, and indeed have been, criminally prosecuted.(fn204) The possibility of criminal legal liability can also confront school officials. There are currently no statutory exceptions allowing for school officials to possess or distribute nude images of minors;(fn205) therefore, school officials who are investigating allegations of cyberbullying that involve sexting could be subject to state and federal criminal felony charges.(fn206) One Pennsylvania school board is currently under criminal investigation for improper conduct and disseminating child pornography when it was alleged that phones displaying pornographic images and video clips involving minor students were passed around and viewed by more school employees than necessary to investigate the incident.(fn207)
Moreover, courts have yet to address the possible civil liability of school officials who uncover and examine nude photos of students. The American Civil Liberties Union ("ACLU") recently pursued a private suit against a Pennsylvania district attorney (after privately settling with the school district) when explicit photos on a female student's cell phone were discovered by the principal and turned over to the district attorney.(fn208) In this case, a teacher confiscated a female student's cell phone when the student used it during class.(fn209 )The teacher turned the phone over to the principal who informed the student that he had found sexually explicit photos and turned them over to law enforcement.(fn210) The cell phone contained photos of the female student in various states of nudity intended to be seen only by the student's boyfriend and herself.(fn211) The ACLU alleges the student's phone was illegally searched.(fn212) Courts have historically been stricter in enforcing the Fourth Amendment when student nudity is involved.(fn213)
Thus, for a school district and its officials to avoid criminal or civil legal liability, if a cyberbullying investigation leads to the uncovering of images of nude minors, those images should never be distributed or shown to other school officials.(fn214) The school official should promptly contact law enforcement and turn the material over to authorities without distributing it. While school officials can discuss the nature of the material with each other for investigative and disciplinary purposes, cyberbullying policies should strictly prohibit the dissemination or showing of any nude images of children to anyone other than law enforcement.(fn215)
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As discussed in a previous Subpart of this Article, a school must provide notice of its cyberbullying policy to students and parents in order to survive constitutional challenges.(fn218) This notice should also include information on how to identify, respond to, and report cyberbullying incidents.(fn219) Because of the often sensitive nature of cyberbullying (particularly if it involves sexting), the reporting provision should specifically identify the school official(fn220) who will be a "safe contact" person for students who wish to report incidents of cyberbullying.(fn221)
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154. See, e.g., Sameer Hinduja and Justin W. Patchin, Sexting: A Brief Guide for Educators and Parents, Cyberbullying Research Center, 3 (2010), http://www.cyberbullying.us/Sexting_Fact_Sheet.pdf [hereinafter Sexting].
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196. If the victim or student reporting the bullying is willing, schools should initiate an interview to determine the nature of the bullying, the name of the participants, the location and the manner in which the information is being sent, and the distance that the images or messages have spread. See Nancy Willard, Educator's Guide to Cyberbullying, Cyberthreats and Sexting, Ctr. FOR Safe and Responsible Use of the Internet, 9 (2005), http://www.cyberbully.org/cyberbully/documents/educatorsguide.pdf. Policies should mandate all evidence be preserved. Id. at 8. This requires that any messages received by the victim (cell phone text messages and voicemails) should not be deleted, emails should be saved and printed, and posts should be printed before removal is requested. Id. Additionally, any information found through the school district's investigation should be saved and documented. Id. One state's department of education has endorsed a policy that requires perpetrators, victims, witnesses, teachers, and staff members to be interviewed. Policy for Prohibiting Bullying, Harassment and Intimidation, Ga. Dep't OF EDUC, 6 (Sept. 9, 2010), http://www.toombs.kl2.ga.us/system/policies/bullying _policy.pdf (last updated Mar. 31, 2011).
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203. See, e.g., Jan Hoffman, A Girl's Nude Photo, and Altered Lives, N.Y. TIMES, Mar. 26, 2011, http://www.nytimes.com/2011/03/27/us/27sexting.html7_r =l and partner=rss and emc=rss and pagewanted=all (explaining how a middle school girl sent a nude photo of herself to another middle school student, a soon-to-be ex-boyfriend, who then forwarded it to another young girl, who then forwarded the photo to all contacts in her cell phone). The article explains: "In less than 24 hours, the effect was as if Margarite, 14, had sauntered naked down the hallways of the four middle schools [in her town] .... Hundreds, possibly thousands, of students had received her photo and forwarded it." Id.
204. See, e.g., id. The county prosecutor decided against charging Margarite, the middle-school girl who had sexted a nude photo of herself to a classmate. Id. But the prosecutor did "charge three students with dissemination of child pornography, a Class C felony, because they had set off the viral outbreak" by forwarding the nude photo to others. Id. See also A.H. v. State, 949 So. 2d 234, 235 (Fla. Ct. App. 2007). In A.H., a sixteen-year-old girl was criminally prosecuted for sending nude pictures of herself to her seventeen-year-old boyfriend. Id. The boy was also criminally charged with producing, directing, and promoting child pornography. Id. See also Riva Richmond, Sexting May Place Teens at Legal Risk, N.Y. Times (Mar. 26, 2009, 12:00 PM), http://gadgetwise.blogs.nytimes.com/2009/03/26/sexting-may-place-teens-at-lega 1-risk/.
205. See, e.g., 18 U.S.C.A. § 2252A (West 2010) (prohibiting under federal criminal law the distribution of child pornography with no exception for school officials investigating sexting or cyberbullying).
206. Sexting, supra note 154, at 3.
207. Joe Elias and Daniel Victor, Sequenita High School Officials Being Investigated for Handling of Images in 'Sexting' Case, The Patriot News (Apr. 15, 2010), http://www.pennlive.com/midstate/index.ssf/2010/04/susquenita_high _school_officia.html.
234. RI Task Force Takes on Cyberbullying, Sexting, Boston Globe (Mar. 15, 2011), http://www.boston.com/news/local/rhode_island/articles/2011/03/15/ri _task_force_readies_new_policy_for_cyberbullying/ ("One proposal from the task force would create a statewide education policy on cyberbullying for schools ... A single, statewide policy would help teachers know what to do when they hear a student is being bullied . . . .").
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245. The Model Cyberbullying Policy in Appendix B of this Article gives an example of an educational program. Like Florida, Illinois also requires schools to implement antibullying training. 105 ILL. COMP. STAT. 5/27-13.3 (2010). Although Illinois does not provide a model cyberbullying policy, the Illinois Attorney General's Office has prepared a webinar and training modules to give some guidance to schools. The educational material includes statistics, anecdotes, and discussion of cyberbullying and sexting. The training modules are modified to be grade-appropriate for elementary school, middle school, and high school. See Office of the 111. Att'y Gen., Attorney General's Internet Safety Training Modules (2010), www.isbe.state.il.us/curriculum/ppt/internet_safety webinar.ppt (last visited Sept. 20, 2011).
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