Sex, Cells, and Sorna: Applying Sex Offender Registration Laws to Sexting Cases

TABLE OF CONTENTS INTRODUCTION I. THE SEXTING EPIDEMIC A. Sexting Consequences B. Legislative Responses C. Sexting Prosecutions D. Child Pornography Laws and Sexting E. Shifting the Focus of the Debate II. THE ADAM WALSH ACT AND SORNA A. Background of the Adam Walsh Act and SORNA B. The Three Tiers III. SORNA IN SEXTING CASES A. Juvenile Registration B. Statutory Analysis of SORNA's Registration Requirements as Applied to Sexting C. State Speculation Regarding Juvenile Registration 1. Virginia 2. Pennsylvania D. The National Guidelines E. The Decision Maker: Judge or Jury? IV. PROPOSED SOLUTION CONCLUSION INTRODUCTION Three teenage girls from Wyoming County, Pennsylvania, entered the national spotlight when former District Attorney George Skumanick, Jr., threatened to prosecute them for child pornography. (1) Their offense: posing for provocative pictures. (2) Skumanick threatened prosecution under Pennsylvania's "sexual abuse of children" statute. (3) He claimed that the girls' roles in creating two digital photographs, (4) one showing two girls in their bras and the other showing one girl "with a white towel wrapped tightly around her body just below the breasts," (5) subjected them to criminal penalties. The ACLU of Pennsylvania intervened and convinced a federal court to issue a temporary restraining order to prevent Skumanick from filing charges. (6) Skumanick appealed, making Miller the first federal case concerning the phenomenon of sexting. (7) The Third Circuit affirmed the injunction, stating that "the District Attorney has failed to present any semblance of probable cause" for prosecuting the minors for possession and distribution of child pornography. (8) The court's ruling, however, leaves many unanswered questions regarding the application of child pornography laws to sexting cases. Sexting, a combination of the words "sex" and "texting," (9) has sparked a national debate regarding the appropriate response to the trend. Partially fueling this debate is the concern that, presuming the pictures involved in sexting offenses meet the state's statutory definition of child pornography, persons engaging in sexting are subject to prosecution under the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) (10) and the Sex Offender Registration and Notification Act (SORNA). (11) SORNA requires registration if the sexual offense is "comparable to or more severe than" specified offenses, (12) yet it provides no guidance as to whom makes this determination. This Note will argue that the determination of whether a sexting offense passes the comparison test is a question of fact that a jury should decide. Part I will provide background information on the sexting debate. Part II will explain the statutory requirements of the Adam Walsh Act and SORNA. Part III will address the application of SORNA to sexting cases, and Part IV will argue that the comparison test involves a question of fact that a jury should determine at trial. I. THE SEXTING EPIDEMIC From Miley Cyrus and Vanessa Hudgens (13) to Law and Order: SVU, (14) sexting is increasingly a part of popular culture. (15) Teens and young adults around the world are involved in sexting. (16) The coverage of the sexting debate extends from prominent legal scholars' websites (17) to popular gossip blogs. (18) A December 2008 study from the National Campaign to Prevent Teen and Unplanned Pregnancy revealed that 20 percent of thirteen- to nineteen-year-olds have "sent [or] posted nude or seminude pictures or videos of themselves," and 39 percent have sent or posted "sexually suggestive messages" via text, e-mail, or instant message. (19) A December 2009 study by the Pew Research Center, however, reported that only 4 percent of twelve- to seventeen-year-olds who own cell phones sent "a sexually suggestive nude or nearly-nude photo or video of themselves to someone else. …