Sometimes, technology moves too fast for lawmakers to keep up. When old laws have to be applied to new trends, people may face wildly unfair punishments as lawmakers debate the right penalties and work to change rules and regulations.

Law enforcement officials, school administrators, parents, and teens faced this exact conundrum not long ago when a “sexting” scandal rocked Cañon City High School.
Hundreds of students were caught consensually exchanging nude images. Since the acts were consensual, you might think that there would be no issue – at least not legally speaking – but holding nude images of minors is, under current Colorado law, child pornography.

Obviously, child pornography is a sex crime in Colorado, and it is something that is taken with the utmost seriousness. However, this situation seemed different: should teens who were consensually sexting each other have to face the severe consequences associated with child pornography charges?

Beyond this more philosophical question was a more practical issue: putting teens behind bars for felony crimes and treating them like sex offenders is costly. A recent report on Colorado’s $5 million spent on polygraph tests revealed that these tests were sometimes used against juveniles who were sending consensual sexts.

Thankfully, none of the involved teens at Cañon City High School ended up being charged with child pornography. However, the scandal pushed lawmakers to change the way sexting is treated in our courts.

Unfortunately, not all sexts are sent with the consent of the person depicted in the photo. While simply sending “sexts” between teens shouldn’t warrant a lifetime on the sex offender registry, most people are in agreement that punishments do need to be in place if adults hold nude images of teens, if sexts are stolen, or if sexts are distributed without the depicted person’s consent. In the wrong hands, a sext can lead to bullying and trauma for the person depicted.

What exactly are lawmakers proposing to do?

Proposed Charges for Sexting

The House recently passed a bill that would lessen charges and penalties for teens that were caught sexting. Rather than facing felony child pornography charges, charges for sexting would include:

• For juveniles over the age of 14 who possesses a nude images of a teen without their permission: petty offense
• For juveniles over the age of 14 who post a nude image of a teen without their permission: Class 2 misdemeanor

The penalties for these crimes, rather than time behind bars, include a diversion program. Additionally, offenders will be able to have the charge expunged from their record within 42 days of completing the diversion program.

Getting to this point has not been easy. The current form of the sexting bill is known as “the compromise bill.” This compromise, and the debate over the lawfulness of sexting itself, has been going on for two years. Many lawmakers still want laws in place that will not allow teens to consensually take nude photos of themselves and share images.

If this bill is signed into law, a post-enactment review will take place two years after the fact in order to measure the success of having these charges.

If Your Teen Is Charged with Sexting-Related Crimes

For now, holding nude images of another teenager is still a felony crime, and under certain circumstances, your teen could face serious consequences for sexting. As uncomfortable as having a talk about sexting may be, it is important that you speak to your teenager about sexting, consent, and the current consequences for sexting.

If your child is caught sexting and faces criminal charges, contact a Denver criminal defense attorney immediately.

About the Author:

Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.