Mai Fernandez, executive director of the National Center for Victims of Crimes, said the law needs to protect young people who consent to sexual activity with someone older who may have more power and resources.
“When it gets bigger than a four-year age gap, it’s very hard to tell if this is really two consenting adults or if this is someone who has an enormous amount of power over the victim,” she said. “Even if the victim doesn’t see it that way at the time, they may see it that way later in life.”
That’s the idea behind a bill introduced in Indiana, where the current Romeo and Juliet provision covers people under 16, the state’s age of consent. The bill would create a new crime of “indiscretion” for people over 22 who have sex with a 16- or 17-year-old.
But Amber Foster said she was an “active ingredient” in her relationship with her husband when they were teenagers, and the law should respect that.
"It's put a lot of guilt on my head," she told Montana legislators in January. "I never wanted him charged."
In Colorado, where the House passed a bill last week that includes new, lower penalties for teens who are caught sexting, prosecutors successfully argued that felony charges should remain an option in extreme circumstances.
Raynes, with the Colorado District Attorneys’ Council, said prosecutors didn’t want to give teens a legal right to sext. "We think that's a pretty horrible message. Kids could tell their parents, 'I have a legal right to do this.' Kids could tell the school, 'I have a legal right to do this.' "
In sexting cases, people whose images are shared can also face legal repercussions. And advocates for victims in Colorado pushed to limit the penalties for teens whose sexting was only brought to light when another teen shared their image. Under the bill, they would likely face a $50 fine or be required to take a class on the consequences of sexting.
In more complex cases, say where coercion is involved or multiple photos are shared, prosecutors argued they should be able to charge young people with sexual exploitation of a minor — the felony that prosecutors in Cañon City passed over. It’s the only level of conviction that requires sex offender treatment.
"If you’ve got kids collecting hundreds of photos of other kids, they’ve got problems. If they’re trading photos with other kids, they've got problems and need treatment," Raynes said. "There are some really disturbed teenagers who are in fact sex offenders and do in fact need sex offender treatment."
Under the Colorado legislation, which now moves to the Senate, teens found guilty of a felony could face time in a juvenile facility, but would most likely receive treatment. They could also petition the court to not be included on the sex offender registry.
Lee, the bill sponsor, agreed that some cases can get serious — he pointed to instances where girls have committed suicide after having images of their bodies shared over the internet. But, he argued, a felony charge is serious too.
"It disables people from living in certain places, getting into college, getting jobs — there are all sorts of collateral consequences that arise from a felony. I think society should reserve a felony for the most egregious and opprobrious crimes, and sexting usually doesn't fall into that category," he said. "Most of the time sexting is a casual exploration of sexuality by teenagers."
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