Legislators trying to rework laws to account for sexting

If a teenage girl sends her teenage boyfriend a naked picture of herself, is it child pornography?

And if that same couple has a nasty breakup and the boy sends the picture to the entire high school football team, should he be prosecuted for possessing and disseminating child pornography?

State lawmakers are grappling with these questions as they tinker with laws to account for "sexting," the transmission of explicit pictures via cellphone, an activity that doesn't fit well into the laws currently on the books.

Both Pennsylvania and New Jersey aim to take a softer approach with teenagers than they would with adults caught with child pornography.

In late September, New Jersey enacted a law that allows first-time juvenile offenders to avoid prosecution and instead be placed in an educational program.

The measure, which was sponsored in the Assembly by Pamela Lampitt (D., Camden), still allows prosecutors to file criminal charges against those who disseminate the material with "malicious intent," but gives prosecutors discretion in how to enforce it and leeway to offer gentler punishment to misguided teenagers who slip up.

"Our court system is burdened. . . . Do we want to bog down our judicial system for this?" Lampitt said.

The Attorney General's Office will issue guidelines on how to enforce the law, and it will also work with the court administration to develop the diversionary educational program, said Brian McGinnis, a spokesman for Lampitt.

According to the law, the program would teach the teens about the legal, social, and emotional ramifications of sexting and discuss how the "unique characteristics of cyberspace and the Internet" can produce "long-term and unforeseen consequences."

Meanwhile, in Pennsylvania, Republicans in the House and Senate are working on bills that would make sexting a misdemeanor rather than a felony, as it is under current statutes.

"I don't think they should do jail time," said Rep. Seth Grove, (R., York), who introduced sexting legislation in 2010. "But community service and educational programs. . . . If you give them heartache, to me that sends a message that it's unacceptable behavior."

Grove's bill passed the House in 2010 and was revised and passed again in 2011. Now it sits in the state Senate Judiciary Committee.

Meanwhile, the chairman of that committee, Sen. Stewart Greenleaf (R., Montgomery), is pushing a similar bill that would include sexting under the umbrella of cyberbullying. Grove expects his measure to be merged with the Greenleaf bill.

Greenleaf said he hopes the bill, if passed, would give prosecutors a way to judiciously deal with both offenses. The bill was last amended Sept. 26 and could be heard by the entire Senate as soon as Monday, a spokesman for Greenleaf said.

Nancy Willard, an expert on the sexting issue and director of the Center for Safe and Responsible Internet Use in Eugene, Ore., praised New Jersey's law as a necessary first step. But she said there is more work to do, especially when it comes to educating children about sexting before they end up in court over it.

"By the time this situation has emerged, they've learned their lesson," Willard said. "That's why what we really need to do is work on the prevention."

The New Jersey Department of Education leaves it up to the districts to talk about sexting specifically, said Allison Kobus, communications manager for the agency.

Some schools may address the issue as part of the anti-bullying law, which passed last year.

The efforts in New Jersey and Pennsylvania don't address another problem that sometimes pops up with sexting: What happens if an 18- or 19-year-old receives a nude picture from his 17-year-old girlfriend? New Jersey's new law deals only with juveniles, as do bills currently under review in the Pennsylvania legislature.

New Jersey's law takes effect April 1.