The New Digital Dating Behavior - Sexting: Teens’ Explicit Love Letters: Criminal Justice or Civil Liability

Abstract

Twenty-first century technology has transformed human relationships. By virtue of e-mail, text, twitter, Skype, IM or any other form of electronic communication, people meet and socially interact in cyberspace. In this fast-paced, technologically-driven era, most relationships, whether business or personal, depend upon some form of electronic or virtual interaction. As technology advances expanding the ways people communicate, even language must keep apace, resulting in the development of new words. Forms of communication turn into verbs, requiring those less technologically savvy to learn a new vocabulary and a new way of speaking.

“Sexting” is one of those new, hybrid words, combining the mode of technology with the subject matter communicated to create a verb. It is only within the past few years that sexting has become a recognizable word to anyone beyond teenage years. Specifically, sexting is “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs via cellular telephones or over the Internet.”

The legal response to sexting and its negative consequences have been problematic. Sexting is hard to put into a legally defined category. From explicit love letters to child pornography and everywhere in between, where sexting falls on the continuum of First Amendment protections is difficult to determine, but necessary to form an appropriate legal response. Thus far, the criminal justice system has responded to the problems of sexting with very mixed results. Child pornography laws are ill-suited to deal with the harms caused by most teen sexting, but dealing with the morality of such activity is not the role of government.

This paper proposes a statutory civil cause of action holding parents vicariously liable for harms caused by their minors’ sexting when done with actual malice. This solution strikes a balance between permitting kids to be kids and placing responsibility on parents to compensate for the harms caused by their children’s digital abuse activity. Civil remedies are often the best form of deterrence; and the actual malice standard will avoid the feared “floodgate” problems of tort liability.

Keywords: sexting, pornography and obsenity laws, civil remedies, technology

JEL Classification: K10, K14, K40