Senate Bill 678 would put Oregon in the company of 20 other states that have tried to address the unintended consequences for teens of anti-child pornography rules aimed at adults.
Sen. Floyd Prozanski (D-Eugene), chairman of the Senate Judiciary Committee, which introduced the bill, says he’s confident the legislation will prevail. But district attorneys in the state have challenged one provision in the bill related to judicial discretion.
In Oregon and elsewhere in the country, 1980s-era laws against the dissemination of sexually explicit images of children have ensnared not only child pornographers but young people themselves (see “Sext Crimes,” WW, Dec. 1, 2010). And because taking and sending sexual photographs of minors is a felony in Oregon regardless of the age of the photographer, some teens in Oregon have faced stiff 70-month sentences as a result of Oregon’s 25-year-old law. Conviction also carries with it the requirement to register as a sex offender.
If approved, SB 678 would treat sexting teens more like foolish kids than perverted adults by creating a new misdemeanor crime of “inappropriate use of a sexual image.” In cases in which the photographer is under 18 and the subject of the photo is less than three years younger than the photographer, sexting would not be a felony.
The proposed changes are driven by Measure 73, a voter-approved ballot measure from November 2010 that greatly increased the punishment for certain repeat sex offenders (as well as repeat DUII offenders). Under Measure 73, a teen who sends two sexually explicit images of another teen on two separate occasions could be charged as a repeat offender. The punishment? A minimum sentence of 25 years instead of 70 months.
After Measure 73 went into effect in December, prosecutors argued there was little chance a 17-year-old boy who sends text messages with images of his 15-year-old girlfriend’s breasts would be railroaded into a 25-year prison sentence. But SB 678 was designed to make sure not even the threat of such an extreme sentence was possible.
Now district attorneys are worried about another extreme—wayward teens who maliciously spread embarrassing photos of other young people and then get off easy under the new proposal.
Brad Berry, district attorney for Yamhill County, is also chairman of the legislation committee for the Oregon District Attorneys Association. Berry says Oregon does need to address sexting, since it’s so common among young people. But the district attorneys association objects to one provision of the bill. That is the portion that gives discretion over sentencing to judges in cases in which the victim is under 12 and the perpetrator is under 18. The district attorneys association says discretion should be with prosecutors.
Berry offers an example: A 17-year-old boy takes a series of suggestive pictures of an 11-year-old girl. The girl doesn’t object. Then the boy gets in a fight with the 11-year-old’s older sister and sends the photos to the entire high-school football team, whose members spread the images.
“Now where are we?” Berry asks. “It fits under the common understanding of sexting, but it’s certainly uncommon behavior.”