Technically, by taking the picture, the kid just created child pornography and committed a felony punishable by prison time and a decade of registering as a sex offender. If the kid sends it to a friend, they've just transmitted child pornography to someone who now possesses child pornography.
And so on.
Prosecutors have used their discretion to come up with a "common sense" solution for high schoolers who might not understand the ramifications of sexting, said chief deputy prosecutor Jeff Boyles. For the first offense, forfeit the phone and work with the Youth Aid Panel.
It's the right policy, Boyles said, but freelancing is not something prosecutors like doing.
That's why the district attorney's office supports a bill proposed by state Rep. Seth Grove (R-Dover Township) that would make it a misdemeanor when teens age 13-to-17 send nude pictures of themselves online or over cell phone.
Grove worked with state's district attorney's association in crafting the bill, which is currently before the judiciary committee.
"The law is a little more harsh than what it has to be," Boyles said. "His bill treats them the way they're supposed to be, rather than hammering them to the full extent we're supposed to.
"(Now) it's a position we don't want to be in.
Creating a legal status for teen sexting would also give prosecutors options when it's not two minors trading pics. For example, Boyles said, a 17-year-old sends a naked picture to his 18-year-old girlfriend, she's technically an adult possessing child pornography, and potentially subject to much harsher punishment, even if they are both high school seniors.
When those cases have come up, Boyles said, prosecutors have applied the same policy, but again, they must work around the law in doing so.
The bill wouldn't formalize the policies many DA's have adopted -- such as destroying cell phones with the images on them or requiring educational classes -- instead leaving it up to prosecutors. But judges would have the power to ban a teen from having texting or picture messaging on a phone.
"You want to allow the judge and prosecutors to have some leverage," Grove said. "You don't want to be too specific."
Grove's bill is one of two proposals before committees in Harrisburg that would reclassify sexting.
State Sen. Stewart Greenleaf (R-Montgomery County) proposed a bill in October that would make sexting a summary offense.
Greenleaf said a summary offense would be easier for a teen to get expunged from the record, but would still require the teen to go before a district justice -- which should drive home the severity of the action. Grove said prosecutors preferred the control they kept by keeping the cases in common pleas court as misdemeanors, which can also be expunged.
There are other differences.
Greenleaf's bill mandates teens go through education courses. Grove supports the idea, but doesn't want to require a program without giving counties the money to pay for it.
Greenleaf's bill also has a clause stating that to qualify as a lesser offense, the sender cannot send the image to a person more than four years younger or older. Grove said he likes that idea.
Both legislators said that one proposal isn't necessarily better than the other. The important thing, they said, is to get them moving so they can be refined as they pass through the legislative process.
And both said they are optimistic that the law can be changed this year.
Schools are often one of the first places that have to deal with sexting.
Last year, Dallastown Area School District sent a letter to all middle-and-high school parents warning them that sexting was happening in the district. Some kids get embarrassed when they're confronted, but some don't see what the big deal is, said Dallastown Supt. Stewart Weinberg.
While he doesn't want a felony charge following a child for life, Weinberg said, any legislation must include an education program.
"Unless there's going to be some really strong discussions the kids have to be involved in, I'm not sure I'm for lessening the punishment," Weinberg said.
"I'm really concerned that if you lower that threshold without having those conversations, we'll have given away the hammer to make sure they realize how serious this is and there'll be more sexting."
After dealing with a number of sexting cases involving high-school students across the county, the York County District Attorney's office created the following policy to deal with offenders last year. New District Attorney Tom Kearney has decided to continue the policy.
--- Any cellular phones in the possession of a juvenile found possessing child pornography will be seized. If the phones are voluntarily forfeited for destruction, no further sanction will be taken against the juvenile.
--- Any juvenile creating and disseminating the child pornography will have the cell phone seized and be referred to the Youth Aid Panel.
--- Multiple offenses will be dealt with on a case-by-case basis.