Sext Crimes

NEW PORNOGRAPHER?: Antjuanece Brown in custody. IMAGE: vivianjohnson.com

Jolene Jenkins was 16 when she first met Antjuanece Brown. The two ate pizza, watched a movie and messed around looking at YouTube videos. Jenkins, a student at Grant High School, was so moonstruck by Brown, she marked the occasion in her day planner by doodling dozens of loopy hearts on the date.

It was Oct. 10, 2009.

One year later, Brown, who is three years older than Jenkins, learned a Washington County grand jury had indicted her for the felony crimes of sex abuse, creating child pornography and luring a minor.

Those charges may suggest a heinous crime. But the evidence against Brown was far more mundane. The photos and text messages police found on Jenkins' cell phone would make few teenagers blush.

The sentencing, on the other hand, would. Seventy months in prison and membership on the sex offender registry are the minimum punishments for peddling child pornography, a crime whose official name is "using a child in the display of sexually explicit conduct."

"Child pornography" may conjure images of lecherous men prowling playgrounds for underage victims. But the anti-pornography laws in Oregon—much like the rest of the country—have not changed since the advent of cell-phone cameras. As a result, Oregon's anti-pornography statute ensnares not only perverts but teenagers who stupidly, or casually, "sext."

"It's not the fidgety old man on the street corner, at the schoolhouse gate or hunched over a computer who gets caught up in this sexting," says David Fidanque, president of ACLU of Oregon. "It's young people who aren't thinking."

Among teenagers who have cell phones, more than one in seven say they've sexted, according to the Pew Research Center. "Acting stupid isn't always a criminal offense," says Multnomah County District Attorney Michael Schrunk.

Indeed, few find themselves in court over sexting. Antjuanece Brown was not so lucky. "I've never been in trouble in my life," Brown says. "I'm not a sex offender."

Though she is three years Brown's junior, Jenkins looks older than Brown. The varsity high-school lacrosse player is gregarious and confident, with straight black hair that frames a heart-shaped face. She often wears a trace of makeup and two sets of glittering gemstone earrings. Her outfits are casual—North Face fleece jackets and jeans.

In other words, Jenkins is a typical teenager. She has an after-school job at Wendy's. She's wanted to be a lawyer ever since her parents divorced in 2006, and she's applying to attend Willamette University next fall. "She's a nice, sweet girl," Brown's mother, Karla Patterson, says. "An average 17-year-old."

Jenkins says she had only ever dated boys. But when she met Brown through mutual friends, she was smitten.

Brown, who lives in Tigard, is stocky, with a round face and a slouchy carriage. Her father calls her "Pops," or Princess of all Princesses, but Brown is more introverted than the pet name suggests. Her younger half-sister looks up to Brown, who says she wants to be a social worker. "She's the funny one in the family," Aaleyah Patterson, 14, says. "She's the one who keeps us together. The glue."

Brown and Jenkins' relationship followed a familiar arc for teenagers.

After they first met, the two grew inseparable. They hung out at the mall and wandered around downtown. One day they went to Lloyd Center, and as they walked back to the parking garage, Jenkins slowed her pace. "Then she just stopped; she pulled my arm and she kissed me," Brown says.

That assertiveness was not uncharacteristic for Jenkins, who says she initiated the relationship.

"Jolene took the lead in almost everything we did," says Brown, who had dated young women before.

Brown, who graduated high school in 2008, worked at a call center in Tigard for $9 an hour. In her free time, she would drive across town to Grant's lacrosse games and cheer for Jenkins from the sidelines. Brown would also meet Jenkins for lunch, picking her up at school and taking her to a nearby Subway, McDonald's or Baja Fresh. Occasionally, Jenkins would ride the bus 15 miles to Tigard to be with Brown at her place. There, they'd baby-sit Brown's 4-year-old nephew, taking him to the pool or the playground. "She was," says Jenkins, "a wonderful person who has made a huge impact on my life."

For Brown's 20th birthday in April, Jenkins got a one-inch tattoo on her hip of Brown's initials, "A.C.B.," inked inside a tiny heart.

Both deny they ever had sex.

"I cherish my virginity," Jenkins insists. "I just don't have time for that kind of stuff; it would take too much energy. Sex complicates stuff."

That may be true. But Jenkins' mother, Carmen Brant, believed her daughter's romance with Brown had developed into something more than puppy love. Sometime in June or July, Brant took her daughter's cell phone and turned it over to Tigard police. Though Jenkins says her mother never seemed to mind when she dated older boys, Brant could never accept Jenkins' relationship with Brown, Jenkins says.

"I love my mother," Jenkins says. "I thought she'd take it better, but she didn't."

PICTURE IMPERFECT: Brown (l), Jenkins. IMAGE: vivianjohnson.com

On Oct. 12, Tigard police arrested Brown on suspicion of creating child porn, for "knowingly subjecting" Jenkins to sexual intercourse and for "luring a minor" by "arousing and satisfying" Jenkins' "sexual desires." The evidence? Provocative photos of Jenkins and someone police identified as Brown, plus an exchange of suggestive text messages.

Washington County's prosecutor blocked release of the evidence. Therefore, it's not possible to say with precision what the cell phone images show. Jenkins and Brown say they both agreed to the photos. Jenkins called them "silly things that all teenagers do."

Their descriptions of the photos may not be the most reliable. However, they say one of the photos shows the two touching tongues. Another depicted a naked female body.

A third shows Jenkins between the legs of another person who is wearing a purple-and-white T-shirt but, apparently, no pants. The image doesn't show Brown's face, but police confiscated a purple-and-white T-shirt from Brown's mother's apartment as evidence that the person is Brown. Police said this was evidence the two had had oral sex.

"We didn't have sex," Brown says.

A web of seemingly contradictory laws govern young people's relationships today.

Under Oregon law, a person commits the felony of using a child in the display of sexually explicit conduct "if the person employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a photograph, a motion picture, videotape or other visual recording."

Equally broad is the definition for "sexually explicit conduct," which includes actual or simulated intercourse.

As a result, it wouldn't much matter to law enforcement officials in Washington County whether Brown and Jenkins actually had sex. It just had to look like they did in photographs. "I didn't know I was breaking the law," Brown says. "But I guess I'm an adult. Period. And she's a minor. Period."

On that point, Oregon law is actually fairly confusing.

Sexting is a felony if the subject of the picture is a minor under 18. That's regardless of the age of the photographer; one doesn't have to be an adult to face charges.

In Brown's case, she faced additional allegations of felony sex abuse and luring a minor because she was more than three years older than Jenkins. In Oregon, a sexual relationship between a person who is over 18 and a minor is lawful if fewer than three years separate the two.

There's a cruel flipside to that three-year defense. A 19-year-old boy in Oregon who has a sexual relationship with a 17-year-old girl isn't breaking the law. But if that same young man takes a cell phone picture of his naked, underage girlfriend, that's a felony. Brown is three years, three months and two weeks older than Jenkins.

John Humbach, professor at Pace University School of Law in New York, has written about sexting, teenagers and freedom of expression. He calls today's anti-pornography laws "a trap for unwary teens" and a chilling example of what happens when old values bump into "new and unanticipated social phenomena."

Thirty years ago, Americans elected Ronald Reagan president, and the made-for-TV movie Fallen Angel, about a pedophile who ruins two young girls' lives, was about to enter heavy rotation on network television.

In May 1984, Reagan signed into federal law tougher penalties against pedophiles. "There's no one lower or more vicious than a person who would profit from the abuse of children, whether by using them in pornographic material or by encouraging their sexual abuse by distributing this material," Reagan said at the White House bill signing in the Rose Garden.

State lawmakers soon followed suit, and in 1985 Oregon legislators passed a law that mirrored the federal act. It ratcheted up punishments for purveyors of kiddie porn. It expanded the definition of what was considered illegal material. And, importantly for Brown 25 years later, it raised the age of a "child" to someone under 18, instead of 16.

Today, fighting child pornography remains a top public safety priority for Attorney General John Kroger, whose "Internet Crimes Against Children" unit convicts, on average, 35 Internet predators a year.

But when lawmakers across the country approved tougher anti-pornography measures 25 years ago in response to Reagan's federal push, making child porn required considerable effort and expense. Legislators didn't foresee a time when teenagers themselves would have the equipment to film and spread sexual images of minors themselves.

Since 2009, a growing number of states have carved out exceptions to their anti-pornography laws to make sexting among minors a misdemeanor or juvenile offense rather than a felony. States have also moved to exempt young people convicted of sexting from having to appear on sex offender registries.

But not in Oregon, where the law hasn't changed significantly since 1985. Instead, the decision of how a judicial system should accommodate this new challenge has been left to the 36 district attorneys in each of this state's counties.

Ed Caleb, the district attorney in Klamath County, says he doesn't condone sexting. But pursuing felony charges against young people who sext is not among his priorities, especially considering the pervasiveness of the problem, he says. "I'd have the whole town in my office, if I did," Caleb says. "This is like holding hands used to be."

Mike Dugan, district attorney for Deschutes County, takes a similar stance. When cases have come to his office for prosecution, lawyers have instead pursued lesser charges like disorderly conduct. Yet Dugan says the current law can be a good "two-by-four." "Some of them have to be made examples of, and if we don't have that two-by-four, they won't be," Dugan says.

Michael Schrunk, district attorney for Multnomah County, says his office uses "common sense and good discretion." A recent case involving a 33-year-old man who impersonated a police officer, then induced young, intoxicated girls to pose provocatively for his camera, is an example of the kind of case his office thinks fits the original purpose of the law—going after criminal minds, not foolish kids.

Washington County appears to have a different attitude. State statistics suggest Washington County's district attorney is the most aggressive in the state in pursuing anti-pornography charges against young people.

Since 2005, Oregon grand juries have indicted 66 people age 21 and under on the charge of using a child in the display of sexually explicit conduct.

Of those, the highest number came from Washington County, which indicted 19 young people, including Brown, on the charge. By comparison, Multnomah County, which has almost 200,000 more residents, indicted just four young people on the charge during the same period.

And while it's difficult to determine the exact circumstances surrounding all of those 66 indictments, which resulted in five convictions, it's clear that some number of them involve sexting.

Washington County District Attorney Bob Hermann wrote a three-page response to WW about his office's approach.

Hermann defended Brown's prosecution, saying in a later interview that she had engaged in "sexual acts in violation of the law," beyond sexting. He says his office applies the pornography charge "judiciously" and typically only in addition to other criminal charges. "Being aggressive about fighting crime," says Dick Schouten, a Washington County commissioner, "that sounds like a good thing."

On Nov. 17, Brown sat in a holding cell adjacent to a courtroom on the first floor of the Washington County jail, where she'd been confined since her arrest. She was wearing an orange overshirt and green-and-white striped pants. Shackles bound her hands around her waist. "Horrible" is how Brown later summed up her five weeks in jail.

"I got called a child molester," she says. "I was told I should kill myself. We were only allowed out of our cells six to eight hours a day. It was lonely and scary."

Facing the prospect of conviction and almost six years in prison, Brown decided to plead guilty to the lesser charge of luring a minor, a felony that doesn't require registration as a sex offender.

Perched on a courtroom bench with her hands clasped in prayer, Brown's mother, a private-care aide for the elderly, was in court that day. Brown's father, who had been hospitalized the night before with complications from diabetes, was also in the courtroom, clutching a cane. When asked to speak, Robert Brown, who is awaiting a kidney transplant, said: "I can't drive and I can't hardly walk. She's my baby and if you all lock her up, you're killing an ex-Marine. That's me."

He added: "My baby is not a sex offender. She fell in love with somebody."

Absent from the courtroom was Carmen Brant, Jenkins' mother and the one who originally called police.

Jenkins herself was asked if she wanted to make a statement. Dressed in black patent-leather high heels, a pencil skirt and a white blouse, Jenkins could not have offered a more striking contrast to Brown's prison garb. Her poise crumbled, however, when it came time for her to address the court. Tears filled her eyes as she covered her face with her hands. Later she said, "I feel victimized by the state, not her."

If Judge Eric Butterfield recognized this, he didn't say. But when he sentenced Brown moments later, his terms were not as harsh as they could have been: three years of bench probation, $3,000 in court fees and an order to stay away from Jenkins until she turns 18 in July.

It's not as if Brown escaped punishment, however. Unable to make the $50,000 bail set for her in October, she was in jail for more than a month. She left with a felony conviction that will make her dream of becoming a children's social worker much harder, if not impossible. In the meantime, that strike against her also cost her her job at the call center, which does not employ felons.

"That's my only income," Brown says. "I was trying to save money, pay off debt."

She now somewhat regrets not having taken her chances with a jury. She thinks going to trial might have allowed her to be with Jenkins sooner. "I can handle not being able to see her," Brown says. "But it sucks not even being able to talk to her. That takes it to a whole different level."

As Brown sat in jail, Jenkins reconsidered for the first time her aspirations to become a lawyer.

"It's not to me what justice should be," she said. "And if it is, I don't know if I want to be a part of it."

A Second Picture Worth 25 Years

Oregon voters overwhelmingly approved a ballot measure last month that could have serious implications for teens indicted on sexting-related charges.

Measure 73, which takes effect Dec. 2, imposes new mandatory minimum sentences on repeat offenders who commit serious sex crimes or drive under the influence of alcohol.

It was billed as a measure that would punish the worst of the worst among us.

But one provision of Measure 73 has critics of the sentencing initiative worried about unintended consequences. Specifically, it increases the penalty for criminals who commit two counts of displaying sexually explicit images of children from 70 months to 25 years. That means a person who takes two images of anyone under 18 on two different dates could face a sentence of 70 months for the first charge and 25 years for the second charge as part of the same case. (Measure 73 will have no effect on Brown, because it is not retroactive.)

Even neutral observers of the measure say the change will have unforeseen ramifications.

"I think this is going to have a big impact," says Craig Prins, executive director of the state Criminal Justice Commission. "And it's a concerning one."

So concerning, even crime victim advocate Kevin Mannix, the author of Measure 73, says there needs to be a less punitive tool for punishing sexting teens. "I do think this may trigger the Legislature to address sexting," he says of Measure 73.

Sen. Floyd Prozanski (D-Eugene) says that could happen in the 2011 session, and Attorney General John Kroger has said he would take a close look at whatever emerges.

"You get the wrong mother finding the wrong cell phone with two pictures with two different dates on them, and you have a teenager facing 25 years in prison," says Rob Raschio, president of the Oregon Criminal Defense Lawyers Association. —Beth Slovic

WWeek 2015