Dangerously Flawed NJ "Sexting" Bill

“Sexting” is an issue that has generated a fair amount of controversy in the past few years. The term refers to underage adolescents sending sexual photographs to each other via cell phones and other electronic devices. It may sound like a fringe issue, but CBS reports a “shocking” frequency of 20% of teens estimated to have taken part. In many cases there are probably few effects, but the problem with electronic images is that they can be reproduced very easily. One high school student, Jesse Logan of Cincinnati, committed suicide after a group of girls got hold of sex pictures sent to them by Logan’s ex-boyfriend. The girls reportedly then systematically bullied Logan for a long period of time.

“Sexting” is clearly different from adults possessing pictures of young kids, but New Jersey’s State Assembly has just passed a great failburger of a bill to deal with the issue. The problem? While it does apply only to minors, it makes no mention of the age of the person in the photographs. In other words, there is no distinction whatever between photographs of a 17-year-old high school student taken by herself and pictures of a kindergartner taken by a 17-year-old psychopath. Read the bill text for yourself. This bill allows any minor who possesses sex pictures to escape a felony charge under a certain set of circumstances. Here are the circumstances declaring an offense “eligible”:

3.    (New section).  a.  As used in P.L.   , c.    (C.       )(pending before the Legislature as this bill), “eligible offense” means an offense in which:(1)   the facts of the case involve the creation, exhibition or distribution of a photograph depicting nudity as defined in N.J.S.2C:24-4 through the use of an electronic communication device, an interactive wireless communications device or a computer; and

N.J.S.2C:24-4 is the state child pornography statute.

(2)   the creator and subject of the photograph are juveniles or were juveniles at the time of its making.

A “juvenile” is generally defined as anybody under the age of 18, no matter how young.

b.    The Attorney General, in consultation with the Administrative Director of the Administrative Office of the Courts, shall develop an educational program for juveniles who have committed an eligible offense as defined under the provisions of subsection a. of this section.  A juvenile who successfully completes the program shall have the opportunity to avoid prosecution for the eligible offense.c.     Admission to the program shall be limited to cases where:

(1)   the juvenile has not previously been adjudicated delinquent for or convicted of a crime or offense which, if committed by an adult, would constitute aggravated sexual assault; sexual assault; aggravated assault; aggravated criminal sexual contact; endangering the welfare of a child pursuant to N.J.S.2C:24-4; luring or enticing a child pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6);  luring or enticing an adult pursuant to section 1 of P.L.2005, c.1 (C.2C:13-7) or an attempt to commit any of the enumerated offenses;

(2)   the juvenile was not aware that his actions could constitute and did not have the intent to commit a criminal offense;

Anybody can claim ignorance of the law. They’re juveniles after all, so it’s believable.

(3)   there is a likelihood that the juvenile’s offense is related to a condition or situation that would be conducive to change through his participation in the educational program; and(4)   the benefits to society in admitting the juvenile into this educational program outweigh the harm done to society by abandoning criminal prosecution.

d.    The educational program shall provide information concerning:

There is nothing in the bill stipulating that the photographs have to be of similar-aged peers or even adolescents! In an amazing display of collective stupor, the New Jersey Assembly recently passed this bill unanimously with no abstentions. Most likely, the drafters the bill did not realize the omission and other legislators simply took them at their word on the meaning of the bill. (It seems no coincidence that the four cosponsors of this bill are all Democrats.) For example:

Republican Assemblyman Jon Bramnick spoke in favor of the legislation before the vote, saying it was a good bill that “sends a clear signal to the Judiciary that when young people make a mistake, this Legislature is saying, ‘give them a chance, give them an option other than a criminal past.”’

If only. People like Dillon Wardian could soon qualify to escape felony charges.

Images found in a folder labeled “My own endeavors” depicted children as young as 4 years old performing explicit sexual acts.Wardian told police he kept the files for disgust and humor purposes and that he has been in “sensitivity counseling” since 2009 to find a way to stop laughing at such images.

Three months later Wardian was caught again:

A teenager out on bond on charges of possession of child pornography has been charged with another sexual crime.

As someone who lives in New Jersey I am not happy that people like Wardian could get off lightly. If they want to pass laws about “sexting” then make sure the language is reasonably precise. I have contacted the five members of the Senate Law and Public Safety Committee to urge them to stop this bill and I hope you will join me if you are concerned:

John A. Girgenti
507 Lafayette Avenue
Hawthorne, NJ 07506
(973) 427-1229

Donald Norcross
114 North Broad St.
Woodbury, NJ 08096
(856) 547-4800

Christopher Bateman
36 East Main St.
Somerville, NJ 08876
(908) 526-3600

Andrew R. Ciesla
852 Highway 70
Brick, NJ 08724
(732) 840-9028

Nicholas J. Sacco
9060 Palisade Ave.
North Bergen, NJ 07047
(201) 295-0200