On Nightline, Amy Adler discusses legal consequences of sexting

Professor Amy Adler appeared in a segment on ABC’s Nightline on April 1 to discuss the legal ramifications of “sexting,” when teenagers electronically send each other explicit photographs of themselves or their peers.

The piece focused on the case of Phillip Alpert, who had just turned 18 when he sent images of his 16-year-old girlfriend to some of her email contacts after the two had had a fight. Alpert was convicted of distributing child pornography and is now a registered sex offender until age 43.

“Technically, it is child pornography,” said Adler in the report. “But I don’t think it’s the kind of case where child pornography law is the right legal framework to use to judge it.”

Adler did think the law had a place in such cases, but suggested that it could be applied differently. “It’s a particularly bad kind of sexting, because it really is a malicious embarrassment of another person,” she said regarding Alpert’s case. “So while there may be some sort of criminal sanction that’s appropriate in this scenario, to me child pornography law is simply inappropriate here. Again, because it’s not the case of a pedophile exploiting a child and sexually abusing that child in order to take a picture. It’s more of an invasion of privacy.”

Many of these situations, Adler said, are instances of the punishment not fitting the crime as technology outpaces the updating of statutes. “Depending on the facts of the case, I would say a lot of these cases shouldn’t be heard in court at all. These are cases where teens are engaging in bad judgment, which teens have always done, and suddenly finding themselves caught in the web of the criminal law because, whereas previously they may have engaged in inappropriate sexual banter on the telephone, now there’s a photographic record of that sexual banter, and that is what triggers the scrutiny of child pornography law.”

The legal waters are muddied further by the fact that teenagers who send suggestive self-photographs to others have themselves been charged with distributing child pornography. Alpert’s underage girlfriend could also have been charged with distribution under current law, although prosecutors chose not to do so.

“Child pornography law was crafted to protect children from pedophiles, that’s the idea behind it,” said Adler. “But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it’s this odd situation where suddenly the pornographer and the victim are one and the same person. And in my view that’s not the kind of scenario that child pornography law should cover.”

Posted on April 2, 2010