RHODE ISLAND EMERGENCY MANAGEMENT AGENCY SCHOOL SAFETY PROGRAM 2012 © 2012 Brennan, Recupero, Cascione, Scungio & McAllister, LLP

LEGAL CONSIDERATIONS SEXTING IN THE SCHOOLS

RHODE ISLANDEMERGENCY MANAGEMENT

AGENCY

SCHOOL SAFETY PROGRAM

2012© 2012 Brennan, Recupero, Cascione, Scungio & McAllister, LLP

WHAT IS SEXTING?

Sexting is sending sexually explicit messages or photos electronically.

Sexting usually occurs via a text message sent. Students exchange digital pictures of sexually explicit subjects via text messages, e-mail, I-pods, and social networking sites, such as Facebook and MySpace.

© 2012 Brennan, Recupero, Cascione, Scungio & McAllister, LLP

What Would You Do If?Student comes to you with cell phone and shows you a sexually explicit picture of a female cheerleader. He claims it was sent to him anonymously. What do you do?

Girl comes to the office in crisis. Tells you her picture (nude) has been sent to members of the football team by her ex-boyfriend. She is hysterical and also tells you “my father is going to kill me”. What do you do?© 2012 Brennan, Recupero, Cascione, Scungio &

McAllister, LLP

Sampling of Recent CasesState v. Vezzoni, 2005 WL 980588 (Wash.App.

Div. 3) Boyfriend and girlfriend/each 16 years old Boyfriend takes sexually explicit pictures of girlfriend with her

permission They break up next week Boy shares pictures with several friends in school Boy charged criminally for: (1) sexual exploitation of minor;

(2) dealing in depictions of minor engaged in sexually explicit conduct; and (3) possession of depictions of minor engaged in sexually explicit conduct

Claims charges are violation of his 1st Amendment Rights/has right to engage in private sexual activity

Claims legislature did not intend for child pornography statute to be applied to these types of situations

Court disagrees/conviction(s) stand



A.H. v. State, 949 So.2d 234 (Fla. Dist.Ct. 2007)

Girlfriend (16) and boyfriend (17) take photos of themselves engaged in sexual behavior

Share pictures with each other over computer Photos never shown to 3rd parties Girlfriend gets nervous that boyfriend will disseminate,

contacts police Each charged criminally Girlfriend argues that statute wasn’t intended to apply to

these situations Court disagrees, stating that “prosecuting a child under this

statute in question is the least intrusive means of furthering the State’s compelling interest”

Dissent argues that statute was designed to protect children, but now being used by the state to criminalize behavior

Indicates what courts and legislatures are struggling with (educating and helping children vs. criminalizing behavior in such a way that may have lifelong consequences


Miller v. Skumanick, 605 F.Supp.2d 634 (Dist.Ct. Penn 2009)

State AG is given pictures of multiple students in various states of undress, nudity

Calls all students and parents together and threatens criminal prosecution unless they pay fine, accept probation and attend counseling program

Several students seek TRO The pictures of these particular students show

them from the waist up wearing a bra Student’s claim not sexually explicit AG claims sexually provocative Court grants TRO in favor of students

Commonwealth of VA v. Oei, CR 0020523-00 Order of Dismissal (Loundoun County Circuit Court) – Criminal Div., Mar. 14, 2009

Assistant Principal charged criminally with possession of child pornography

Charge eventually dismissed Assistant Principal is shown picture and has student

text him the picture so he has it for investigation Assistant Principal tells student to delete picture

(student does not) Assistant Principal did not inform police or parent of

incident Two weeks later the student is caught with picture Parent then learns that Assistant Principal had known

about picture and had copy Mother reports to police Assistant Principal also charged with failure to report

suspicion of child abuse That was later dismissed as well Textbook example of what not to do


STATUTORY RESPONSE TO SEXTINGCONCERNS

Rhode Island has addressed this issue with specific legislation.


Minors Sexting

§ 11-9-1.4. Minor electronically disseminating indecent material to another person -- "Sexting" prohibited

A person under 18 transmitting (or digitally storing) an indecent visual depiction of the minor engaging in sexually explicit conduct.

No minor shall knowingly and voluntarily and without threat or coercion use a computer or telecommunication device to transmit an indecent visual depiction of himself or herself to another person.

A violation of this section shall be a status offense and referred to the family court.

Any minor adjudicated under subsection (b) shall not be charged under § 11-9-1.3 and, further, shall not be subject to sex offender registration requirements set forth in § 11-37.1-1 et seq., entitled "Sexual Offender Registration and Community Notification Act."



"Child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit which depicts sexually explicit conduct;

Includes a minor.


§ 11-9-1.3. Child pornography prohibited Knowingly produce any child pornography; Knowingly mail, transport, deliver or transfer by any

means, including by computer, any child pornography; Knowingly reproduce any child pornography by any

means, including the computer; or Knowingly possess any book, magazine, periodical, film,

videotape, computer disk, computer file or any other material that contains an image of child pornography.


Exceptions:1. Possessed less than three (3) images

of child pornography; and 2. Promptly and in good faith and

without retaining or allowing any person, other than a law enforcement agency, to access any image or copy of it: Took reasonable steps to destroy each

such image; or Reported the matter to a law enforcement

agency and afforded that agency access to each such image.

SUMMARYMinors charged under the new law will be charged with a status offense in State Family Court. However, minors who possess or distribute sexually explicit images of a minor (other than themselves) can still be prosecuted under the State’s child pornography laws and if convicted, may serve up to 5 years in jail and be required to register as a sex offender.If convicted, an individual could receive up to 15 years in jail (5 years in the case of possession) and/or a fine. In addition, the individual will need to register as a sex offender.


How should we address sexting in a school setting?

Develop an effective school policy.Set student expectations.

Advise them what is and is not appropriate.

Develop a clear protocol for administrators.


School Policy/Handbook Considerations Educate students and staff about sexting

in-school assemblies/announcements to students professional development for staff newsletters/correspondence to the community links on the school webpage

Have a cell phone policy/include in handbook You should develop a clear policy that is uniformly enforced by staff and

understood by students and parents. The policy should make clear that by bringing a cell phone onto school grounds,

the student consents to the cell phones search and seizure and a review of its contents

Prohibit sexually explicit pictures/images on any device on school grounds Make it clear that the mere possession of sexually explicit digital pictures is

prohibited School handbooks should be as comprehensive as possible. They should prohibit

sending, sharing, viewing, or possessing material of a sexual nature in electronic or any other form on a computer, cell phone or other electronic device.

Handbooks should also make the consequence for possession and / or dissemination clear. However, we always suggest that you include discretionary wording that would allow administrators discretion to address each situation individually

Handbook and policy should make clear that any violation will be reported to the police and may constitute a crime© 2012 Brennan, Recupero, Cascione, Scungio &

McAllister, LLP

How To Handle A Sexting Incident in a School Setting

Investigate thoroughly Punish all offenders

This includes: the person in the picture the person who disseminates the picture Student(s) in possession of the picture(s) Student(s) who knew about the picture and didn’t report it, etc.

Inform the parents immediately Failing to notify parents is a huge mistake Much more likely to get parent cooperation if notification is instant

Inform the police immediately Do not treat this as only a school matter In other jurisdictions, this has resulted in the administrator(s) being charged

criminally Once reported to the police, you conduct your investigation and hand out any

required discipline and let them do their investigation Be conscientious of the SRO interrogation statute Offer counseling as needed:

This can obviously be a traumatic situation for the student in the picture and schools need to be cognizant of this


Conclusion

QUESTIONS??????


Documents

RHODE ISLAND EMERGENCY MANAGEMENT AGENCY SCHOOL SAFETY PROGRAM 2012 © 2012 Brennan, Recupero, Cascione, Scungio & McAllister, LLP