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Column: Laws Are Needed That Specifically Deal With Sexting Crimes

New Haven,Conn.

What is this madness? That’s the question I heard over and over late last week from people who care about the lives and health of teenagers. Canada has been in an uproar over whether a group of boys should be prosecuted for sending around humiliating photos of 17-year-old Rehtaeh Parsons, a girl from Halifax who said the boys raped her. And in the same week, three 16-year-old boys were arrested in San Jose, Calif., on charges of sexually assaulting 15-year-old Audrie Pott, who was also humiliated by online photos.

The worst of the awful similarities in these stories is that both girls killed themselves. Audrie hanged herself about seven months ago, eight days after the assault. Rehtaeh hanged herself the weekend before last, months after the police said they would not prosecute anyone. On Friday afternoon, the Halifax police, citing “new and credible information,” said they would reopen the case.

That is a relief. Still, as we pick through the wreckage of these sad stories, I’m trying to think about a better way to get at some of the harm.

Set aside, for the moment, the alleged assaults. There is a longstanding problem of proof when allegations of rape are made, especially among people who know each other and when drinking or drugs are involved — though the convictions in Steubenville, Ohio, show it can be done. Maybe the Steubenville result, in which a judge found the boys guilty for a sexual assault that the victim could not really remember, will wind up being the just ending to Audrie and Rehtaeh’s cases, too.

But there is also the circulation of the compromising photos, which created a trail of digital evidence. In light of that, we should have a clear way to bring charges against the instigators — a way that recognizes that the boys involved were teenagers, not adults.

Whoever is responsible for circulating the photos of Rehtaeh could be charged under Canada’s child pornography laws. A conviction would come with a mandatory minimum sentence, Canadian Attorney General Rob Nicholson emphasized in a statement about Rehtaeh’s case.

In a situation like this, where outrage is understandably everywhere, it’s hard to think about tempering justice with mercy. Believe me, I know that. And for these boys, child pornography charges may well be warranted. But most of the time, charging teenagers as child pornographers shouldn’t be the only option. We should have laws that offer a middle ground between no charges at all and heavy prison sentences with a lifetime on the sex-offender register. We should have laws that specifically and deliberately address teen sexting.

The key is to distinguish between one kid consensually sending one other kid a sexual photo and one kid sending out a photo that the pictured teenager has not consented to at all. It’s not that the first kind of sexting is a good idea — it’s that kids shouldn’t get caught up in the criminal justice system for it, whereas nonconsensual sexting is a different story. “We should draw the line between my daughter stupidly sending a photo of herself to her boyfriend and her boyfriend sending it to all his friends to humiliate her,” Marsha Levick of the Juvenile Law Center told me. “The first is stupid. The second is more troubling and should be criminal.”

In the U.S., states have been trying to sort out sexting laws for the past few years. Levick says that not enough lawmakers are picking up on the distinction she makes. Pennsylvania, for example, passed a law with criminal penalties for juvenile sexting with malicious intent — helpful — but also made consensual sexting a misdemeanor.

I know that in Canada now isn’t the right time to focus on these nuances. Not now, while Rehtaeh’s case is still unfolding. Members of the hacker collective Anonymous, who have been investigating, say they have identified the boys who allegedly raped and photographed her. The Canadian police emphasized that the new information that led them to reopen the case “did not come from an online source.” Still, as in Steubenville, the online pressure played a real role.

Prime Minister Stephen Harper also helped Friday when he said he was “sickened” by Rehtaeh’s death. He sensibly pointed out that it’s a misnomer to use the word bullying for the treatment she endured — the circulation of the photos and the slut-shaming that followed. “I think we’ve got to stop using just the term bullying to describe some of these things. Bullying to me has a connotation of kind of kids misbehaving. What we are dealing with in some of these circumstances is simply criminal activity,” Harper said. “It is youth criminal activity. It is violent criminal activity. It is sexual criminal activity, and it is often Internet criminal activity.”

I couldn’t agree more. And that’s why the criminal justice system should take this conduct seriously enough to develop a better response. Something that will help other kids should come out of all the sorrow.

Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her new book is Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character.