By (no pun intended) coincidence, both the states of California and New York are addressing sexting issues by students and/or teens. The California Senate has already passed their version, while New York has only reached the proposal stage of their version. New Jersey is ahead of both states and has already passed a bill.
California's approach is more in the discipline arena, spelling out how students may be punished for sexting where the misconduct falls under the jurisdiction of a school. New York's is more broad and is geared toward a diversion program for first-time young offenders.
We've seen many jurisdictions take a very hard line where sexting by and between minors is concerned. For example, children have been charged with distributing child pornography – even for sexting photos of themselves. These are serious felonies that could result in jail time as well as the perpetrator being forced to register as a sex offender.
Furthermore, we get into a sticky area of protected classes, which are rules designed to protect the target class of an offense. In other words, if a statutory rape charge is designed to protect a young female against the advances of a young male, and both are caught having sex, the rule prevents prosecuting the female because she's in the class the offense is designed to protect. I refer to it as the "Groucho Marx" Rule (you know, "I wouldn't join any club that would have me as a member"?) The relevance here is that in many sexting cases, minors are being charged via underage rules that were designed to protect – you guessed it – minors.
I like to preface all child-related discussions with the fact that I don't have any children, so I'm not pretending to be the most qualified in the area, however, my approach is to ask current parents what they think they might have done if they'd had access to all of this amazing technology when they were young and – most likely – didn't consider the consequences of their actions? Do they think they might have done ill-advised, accidental or – dare I say – stupid things? Most of them would probably admit they might have; or did. Would they want their lives – and possibly their entire futures – destroyed due to one moment of poor decision-making? Remember, the only difference between now and then is, Twitter, Facebook and the Internet didn't exist to capture it all in real-time.
Normally, I wouldn't 'go there', but since this just happened a couple of hours ago, what do you think Anthony Weiner (D-NY) is thinking about right now?
We have to look very carefully at the facts. If the incident was truly devoid of the intent to do harm, I have to say, I like New York's approach.
Besides, dammit, if the Internet existed when I was young, I'd be a famous rock star instead of a lawyer!