The quick advancement of technology can be great, but sometimes the laws can’t keep up and we’re left with harsh penalties for crimes that previously didn’t exist.

Sexting is one of those crimes.

Last year, more than 100 students at Cañon City High School were found with sexually explicit images of other teens. The scandal shocked Cañon City residents, and as a result, students were suspended and the football team had to forfeit their season ending game.

While prosecutors in Fremont Country could have filed criminal charges against the students, they decided against it because they said the law was unable to differentiate between misbehaving teens and adult sexual offenders.

Possessing sexually explicit pictures of minors is seen as child pornography according to the definitions set forth by the law. And Colorado currently recognizes sexting as felony child exploitation. This crime is punishable by up to 12 years in jail as well as a lifetime registration as a sex offender.

For something that teens are prone to do, the punishment, in this particular case, definitely doesn’t fit the crime.

So what should the law be when it comes to sexting? And, when you really think about it, is sexting even a crime?

Proposed Sexting Legislation

Under current laws, sexting is seen as a felony offense. But at least 20 states have identified that the penalties associated with child pornography shouldn’t apply to sexting cases, and those states have adopted sexting laws with less severe penalties.

• Hawaii says minors can get out of a conviction if they take steps to delete the photos.
• Arkansas can sentence first-time sexting offenders to 8 hours of community service.
• New Mexico has completely removed criminal penalties for sexting.
• Other states have made sexting a misdemeanor instead of a felony.
• And instead of charging teens with a crime in other states, they have to take a course on the dangers of social media.

At least 12 other states are contemplating new sexting laws along with our own state. Colorado has also decided to establish a sexting law that would create a new misdemeanor crime for the “misuse of electronic images” by teenagers. But lawmakers have delayed the vote on the bill because there was such an intense backlash from teens and researchers. They claim that sexting is so common that making it a misdemeanor – which can be punished by up to a year in jail – is still too much.

Supporters of the bill say that teens, who are minors under Colorado law, are incapable of consensual sexting. One district attorney even goes so far as to say that we don’t let kids own guns, rent cars, or even vote because we don’t trust their judgment.

But how can someone compare owning a gun, which could potentially kill someone, to sending an explicit picture to someone of your own free will?

Now, it’s one thing if the pictures are obtained illegally or without the owner’s consent, but there are specific laws for those situations.

The bill’s sponsor, Representative Yeulin Willett, R-Grand Junction, says he will amend his proposed legislation to make sexting amongst teens a petty crime, which is punishable by up to six months.

But with sexting being so common and not looking like it will go away anytime soon, that new legislation might be overkill, too.

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.