Vexing Sexting

By Marlene E. Wyatt

Eichelbaum Wardell Hansen Powell & Muñoz, P.C.

The Federal Trade Commission (FTC) recently ordered Facebook to pay $5 billion in fines due to violating the privacy rights of its users, but the FTC is not the only entity dealing with digital criminal activity.[1] As the phenomenon of teen sexting continues to grow, school districts must be ready to address the fallout when it enters the schoolhouse.[2] 

“Sexting” is a modern term for photos and videos that depict sexual conduct or that expose intimate body parts. SnapChat is often used for this activity. The concern for schools is that an overwhelming amount of teen sexting constitutes the sharing of child pornography (explicit images of a person less than 18 years old). Nevertheless, not all minor sexting is illegal.

Just as there are Romeo and Juliet laws for sexual activity, there are such laws for sexting. If an adult student (over 18) is sexting with a minor student (less than 18), the adult student has an affirmative defense to child pornography charges if he/she is no more than 2 years older than the minor student. Thus, if 18-year-old adult student Romeo was born July 1, 2001, Juliet had to have been born on or before July 1, 2003 for the sexting to be legal. If Juliet was born after July 1, 2003, Romeo and Juliet could be prosecuted on felony child pornography charges.[3]

If Romeo and Juliet are both minors, the law requires them to be within two years of age and to be currently dating in order to legally sext. If they are not within the age limit or are not currently dating, both parties have committed a misdemeanor if the images were shared only between the two teens.[4] 

Consensual sexting is not the typical circumstance in which an administrator finds herself managing a sexting scandal. Instead, the typical situation is a sext, whether legal or illegal when initially sent, is subsequently shared with others without the consent of the student depicted.  Colloquially, this is known as revenge porn or gossip porn. Under the Texas Penal Code, this is known as the Unlawful Disclosure of Intimate Visual Material and is a felony.[5] 

Disciplinary Consequences

If the photos-at-issue were shared or possessed on or within 300 feet of school property (including via the Internet that was accessed at school) and the conduct constituted a felony, assignment to DAEP is mandatory.[6]  If the sharing or possession within 300 feet only constituted a misdemeanor, then assignment to DAEP is discretionary. In addition, even if the sexting is legal, your student code of conduct likely prohibits all forms of sexually explicit images no matter their legality. Extracurricular codes of conduct may also contain separate forms of discipline for possession or sharing of such photos.  

Many times, sexting scandals are coupled with allegations of cyberbullying and sexual harassment that necessitate investigations. During an investigation, staff should limit the amount of times the photos are viewed. While there are some defenses that administrators may employ in defense to possession of explicit photos (mainly due to the fact that they are investigating the matter), staff should ensure that photos are not forwarded or saved on staff or district phones and computers.[7] 

Finally, Texas Education Code 37.218 requires districts to “annually provide or make available information” on sexting and its connection to crime, bullying, cyberbullying, harassment, and sexual conduct. This is an opportunity to make parents your partners in educating students on the dangers of expressing their sexuality on a digital platform. While there is little sign that this phenomenon is going away, but ideally parents and staff can work to limit its negative effects.

Upcoming Trainings

Blue Jean Workshop: Legal Update for Administrators

August 2019

For more information and to register online, click here.

Legal Issues for School Secretaries

Sept–Oct 2019

For more information and to register online, click here.

Title IX Administrator Conference

October 2019

For more information and to register online, click here.

Construction Procurement
Episode I: A Bid to Survive – The Rise of the Procurist

October 8, 2019

For more information and to register online, click here.

Construction Phase and Beyond

Episode III: Operation Build

October 29, 2019

For more information and to register online, click here.

Materials

2019-20 Model Student Code of Conduct and Handbook

For more information and to purchase online, click here.

2019-20 Model Employee Handbook

For more information and to purchase online, click here.

Trustee Manual – 2019 Updated Edition

For more information and to purchase online, click here.

Conducting Effective Investigations Manual (Revised 2019)

For more information and to purchase online, click here.


[1] Feiner, Lauren; CNBC; FTC slaps Facebook with record $5 billion fine, orders privacy oversight; July 21, 2019; https://www.cnbc.com/2019/07/24/facebook-to-pay-5-billion-for-privacy-lapses-ftc-announces.html

[2] Johnson, Christen; Chicago Tribune; Teen sexting has increased — 5 tips for parents on how to handle it; February 26, 2018; https://www.chicagotribune.com/lifestyles/sc-fam-teen-sexting-0306-story.html

[3] Texas Penal Code 43.26

[4] Texas Penal Code 43.261

[5] Texas Penal Code 21.16

[6] Texas Education Code 37.006(a)(2)

[7] Texas Penal Code 43.26(h)