RESOLUTION of the philadelphia bar association opposing BILLS such as house bill 2189, printers no. 4008, providing for the prosecution of teens for “sexting”

WHEREAS, The Pennsylvania House of Representatives recently passed House Bill 2189, Printers No. 4008, which makes the dissemination, transmittal, or possession of a sext message a summary offense or misdemeanor in the second degree for minors; and

WHEREAS, “sexting” has been defined as the sending or posting of sexually suggestive images, including nude or semi-nude photographs, via cellular telephones or over the Internet¹ ; and

WHEREAS, although sending or sharing nude or semi-nude photographs via the internet or cell phone messaging can result in unintended consequences for the youth in the photo, including possible victimization and exploitation, prosecuting the individual who appears in the photo does not reach the true predators and will likely not deter teenagers from continuing to send their photographs over email or text message; and

WHEREAS, criminalizing the communication will lead to further dissemination of the photograph as numerous court personnel will be required to view the photo; and

WHEREAS, typical sexting, where images are exchanged consensually with no malicious or criminal intent, is not currently a crime under Pennsylvania law, nor should it be; and

WHEREAS, the inclusion of consensual sexting in the child pornography statute, 18 Pa.C.S. § 6312, is inconsistent with the legislative intent of that statute, to protect children from possible exploitation and victimization; and

WHEREAS, rather than creating a new offense to encompass sexting behavior, legislators should explicitly carve out an exception to the child pornography statute to exclude consensual sexting by a minor; and

WHEREAS, any effort to criminalize sexting when no malicious or criminal intent exists to harm another individual, through harassment, intimidation, or causing damage to one’s reputation, is contrary to the rehabilitative purposes of the juvenile justice system and may result in the juvenile suffering long-term legal and social consequences; and

WHEREAS, disciplining children for engaging in sexting should rest on parents and educating children about the potential harmful effects of sexting should rest on parents, schools and our communities; and

WHEREAS, schools and community groups should make educational efforts to inform youth about the possible risks of sharing their intimate photographs over the internet, including the dangerous as well as socially stigmatizing risks; and

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges that a criminal offense should not be created that would expose juveniles to prosecution and sanctions for engaging in consensual sexting where no criminal intent to harm exists. Rather, youth should be educated through their families, schools, and communities about responsible uses of new technologies and making better choices about sharing intimate photographs with others.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges the General Assembly not to enact House Bill 2189, Printers No. 4008, or any similar legislation.

BE IT FURTHER RESOLVED that the Chancellor of the Philadelphia Bar Association shall take any and all appropriate steps in furtherance of this Resolution.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: September 30, 2010

¹Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009).