Ben Boychuk

‘Sexting’ is stupid, but it shouldn’t be felony for teens

A bill before the California Legislature would allow school officials to expel or suspend students who “sext.” Ben Boychuk says it’s a better alternative than charging teens with felonies.
A bill before the California Legislature would allow school officials to expel or suspend students who “sext.” Ben Boychuk says it’s a better alternative than charging teens with felonies. The New York Times

Look, how do I put this delicately? Teenagers who send pictures of their genitals to one another are fools. And that’s being charitable. I mean, this shouldn’t even be controversial.

Don’t be stupid, kids. Put the phone away, pull your shirts down and pull your pants up. That naked selfie will come back to haunt you. Your boyfriend of the hour will share that pic with his barbarian friends, and – for reasons I cannot begin to understand – they will share it with their girlfriends. Humiliation is guaranteed. Prosecution is a distinct possibility.

Here I should point out that the boys who do “sext” are about as likely to get into trouble as girls. But they don’t face quite the social backlash. Funny how that works.

“Sexting” is so common now that at least 20 states including Florida, New York, New Jersey and Texas have outlawed it. Penalties range from fines and community service to counseling and “educational programs” that stress self-respect but haven’t a thing to say about right and wrong. Several of those laws have been on the books since 2009, for all the good they’ve done.

Notice that California is not on that list. In the absence of a specific statute, authorities are left with some pretty blunt instruments.

Treating a stupid kid who sends a naked selfie as a sex offender is even more foolish – and unjust – than the original act. According to the National Center for Missing & Exploited Children, roughly one-quarter of victims of child pornography posted the criminal images themselves.

Yet school officials in California who encounter this stuff have little or no discretion; existing law is foolish and mulish. The police get involved, then the district attorney’s office. Soon enough, a puerile adolescent act lands a kid on the sex offenders’ registry until the end of time.

Assemblyman Ed Chau, a Monterey Park Democrat, has a remedy. Assembly Bill 2536 would give schools the right to expel or suspend students for sending nude or sexually explicit photos and images electronically “with the purpose or effect of humiliating or harassing a pupil.”

Chau says the legislation offers school districts a way to discipline students who have sexted classmates or even teachers but whose actions “don’t reach a legal threshold for criminality.” Not every “sext” is a felony, nor should it be.

Isn’t it remarkable that school administrators don’t have this power already?

Turns out, the Legislature has been down this road a few times already. Similar bills introduced in 2011 ended up in the suspense file.

Our progressives are awfully reluctant to regulate sexually explicit material, even when the harm is obvious. In 2013, the Legislature tied itself in knots trying to pass a bill that outlawed “revenge porn” – another modern phenomenon born of smartphones, dumb choices and all-too-ready malice. Lawmakers have spent the past two years tweaking that legislation, which made a misdemeanor of posting somebody’s nude selfies without his or her consent.

Civil libertarians have a problem with these laws. The American Civil Liberties Union opposed the revenge porn bill, saying it targeted “merely offensive speech.” The ACLU hasn’t formally weighed in on AB 2536 yet, but we have a pretty good idea of what the objections will be, based on other states.

One is that suspension or expulsion solves nothing because the kid can just keep doing what he or she has been doing from home. That assumes, of course, the parents are too dumb or too spineless to take the kid’s phone and computer away.

Another is that school administrators are too dumb to figure out a student’s intent in sending those naked pictures and suggestive texts. But, come now: Is it really so complicated?

For what it’s worth, Chau’s bill would also require schools to include talk about sexting in sex education classes, warning of its possible legal consequences while studiously avoiding any uncomfortable judgments.

Chau’s bill at least recognizes that sexting is serious enough to deserve some punishment. To the extent that it diverts some wayward teens from a lifetime on the sex offender registry, it might make for a worthy law. But the cultural rot that makes such a law necessary is beyond Chau’s reach.

Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. He can be contacted at