Sexting or Self-Produced Child Pornography – The Dialogue Continues – Structured Prosecutorial Discretion Within a Multidisciplinary Response

The issues of “sexting” and “self-produced child pornography” (SPCP) have captured the attention of the media, courts, and state legislatures. A debate rages among advocates, policy makers, and reporters about how the law should address this activity. More than sixteen states have considered special legislation to address the problem and litigation has ensued. Lost in the debate are many realities including the complexity of the problem. This behavior implicates aspects of child development, child sexuality, child exploitation, teen dating violence, education, and parenting. While any deliberation about children and how the law should protect children is positive, sensationalism and oversimplification of this complex phenomenon undermine rationale debate. This article builds on the concept that the solution does not lie in the criminal law. Rather, it seeks to refocus the debate by suggesting that part of the solution depends on the formation of a comprehensive “smart” response. To accomplish this, society and its institutions (educational, social service, religious, law enforcement, legal, and civic) must come together and form a considered strategy that encourages prevention and a smart response when prevention fails. This article examines the role of prosecution, if any, in that “smart” response. This article argues against the use of blunt instruments that fail to recognize the complexity of SPCP. These extremes include “zero tolerance” policies, which in most cases do far more harm than good; decriminalization, which prevents a prosecutor from ever abusing his or her discretion, but also precludes juvenile court intervention even where the conduct is particularly egregious or the youth is in particular need of such; or an ad hoc approach by prosecutors which risks inconsistency, unfairness, and bias. This article proposes an alternative approach which balances the need for fairness with a need for flexibility: Structured Prosecutorial Discretion within a Multidisciplinary Approach. It is grounded in the recognition this complex problem covers a broad array of behaviors: from naively producing inappropriate images, to coercion, to maliciously distributing images of others virally. The proposed model calls for prosecutors, together with members of other disciplines, to accept a protocol whereby a variety of proposed factors are considered, in a systematic way, in evaluating cases. Structured Prosecutorial Discretion is characterized by a rejection of mandatory prosecution, exposure to sex offender registration, or adult criminal court, at one extreme, and decriminalization at the other. Structured Prosecutorial Discretion would allow juvenile court prosecution to remain as part of a multidisciplinary response for only the most egregious cases (such as vindictive distribution of the images, coercion of the victim, etc.) and only after the implementation of offender-based and offense-based protocols.This article stems from a 2007 article which was the first to discuss production and distribution of child pornography by juveniles themselves, prior to its revelation in mainstream media. The discussion here explores the new research since then and further examines the many novel suggestions offered by scholars since “sexting” entered the public conscience.