DENVER — After years of debate around how to deal with teenagers sending nude photos over their cell phones, a bill signed into law Tuesday now gives the state’s District Attorneys much more freedom to decide what charges are appropriate.
HB 17-1302, Juvenile Sexting Crime, has been worked over for the last five or more legislative sessions with no luck because many victims’ advocates worried the worst cases would get lost in the shuffle, leaving no way to punish juveniles who were in serious violation of child pornography laws through digital means.
But 19th Judicial District Attorney Michael Rourke, Weld County, said the final bill was a win-win for everyone and especially useful prosecutors.
“This is a tool prosecutors have needed for a long time,” Rourke said.
Sexting is the combination of sex and texting and is defined simply as sending, receiving, or forwarding sexually explicit messages, photographs or images with cell phones, or any other digital device.
Alleged sexting crimes brought to Rourke’s office fell under one charge, “sexual exploitation of a child.” Depending on the severity, that charge was either a Class 3 felony or a Class 6 felony. It usually came with more than a decade behind bars – and a sex offender registry listing that never goes away, regardless of the offender’s age at the time of incident.
“When we’ve been looking at incidents of sexting brought to our office … historically, we’ve been put into one of two boxes,” Rourke said.
Those boxes were labeled all or nothing.
“I refer to that as the thermal nuclear option,” Rourke said. “That type of adjudication or an arrest on a juvenile’s record is going to have almost fatal consequences for the ability to obtain student loans for college or higher education. So prosecutors across the state, as was I, were hesitant to ever charge a juvenile with that kind of enormous offense for sexting.”
But doing nothing was also wrong, he said. School resources officers knowing the policy of most DA’s were dealing with many more cases on their own.
“This bill finally gives us the tool to be able to address the issue in a reasonable and responsible manner,” Rourke said.
The bill takes a tiered approach that defines varying levels of sexting and the penalties associated with them.
If a 16 year old girl sends an inappropriate picture of herself to her boyfriend, it will likely be considered a civil infraction and carry a $50 fine or the successful completion of a sexting class. But if those same two people break up and the boyfriend then sends that picture to his friends, it could be anything from misdemeanor with no sex registry requirements to a felony, depending on the circumstances.
The bill specifies it is a Class 2 misdemeanor if a juvenile: “knowingly distributes, displays, or publishes to the view of another person a sexually explicit image of a person other than himself or herself who is at least 14 years of age or is less than 4 years younger than the juvenile:
- Without the depicted person’s permission.
- When the recipient did not solicit or request to be supplied with the image and suffered emotional distress.
- When the juvenile knew or should have known that the depicted person had a reasonable expectation that the image would remain private.
Or if “the juvenile knowingly distributes, displays, or publishes, to the view of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, a sexually explicit image of himself or herself when the recipient did not solicit or request to be supplied with the image and suffered emotional distress.”
It becomes a Class 1 misdemeanor if:
- “The juvenile committed the offense with the intent to coerce, intimidate, threaten, or otherwise cause emotional distress to the depicted person.
- The juvenile had previously posted a private image and completed a diversion program or education program for the act pursuant to the provisions of the bill or had a prior adjudication for posting a private image by a juvenile.
- The juvenile distributed, displayed, or published three or more images that depicted three or more separate and distinct persons.”
The law still allows for felony charges for more serious cases that are outside the parameters of the bill.
“Where it would cause us to say, ‘Hey wait a minute, this isn’t just juvenile behavior, this is actual criminal conduct,’” Rourke said, giving examples such as coercion, large age gaps between the parties, and repeat offenders, to name a few.
Senator Bob Gardner, (R-El Paso) said during a senate judiciary hearing that he was pleased those working on the bill could get the bill to a point where everyone involved agreed. The bill passed unanimously on third reading in both chambers of the General Assembly.
It will take effect Jan. 1.
“This was the result of a very laborious effort in the house and the stake holders for three or four or five sessions before,” Gardner said with a laugh. “It had large stake holder support.”
Rourke said two other requirements of the bill, one that requires schools and law enforcement to track the bill’s efficacy over the next two year and one that requires the DA’s office to come up with a diversion program shouldn’t have much an impact on work load or fiscal matters.
“We’ve had our juvenile diversion program now already for about 10 or 11 years,” Rourke said. “Obviously, we haven’t used it for sexting situations because of felony charges, but we’re already in the implementation phase of developing what a sexting diversion program would look like.”
He said he expects there will be some community service and accountability required for a diversion program and expects roughly 50-60 juveniles to go through the program yearly.
“I may be wildly off on my estimate,” he said. “But that’s based on my discussions with school resource officers and other law enforcement.”
Rourke shared his best advice and what he tells students when he talks to them in the schools about the proper use of technology.
“Once it gets out there, it’s out there forever,” he said. “I try to tell them not to post or send anything that they wouldn’t want their grandma to see.”
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