Had she done it two years earlier, a teenage girl who used her cell phone to “sext,” or send a picture of her privates to a classmate, would have been in big trouble.
But a Florida law designed to go easy on juveniles who transmit nude images turned out to be more lenient than anyone intended, an appeals court has ruled. Now the 13-year-old girl at the center of a Broward case won’t be facing any penalty at all, and neither will any other juvenile sexting defendant, the court ruled, until the law is fixed.
The ensure juveniles aren’t saddled with the lifelong stigma of sex offender status, the law made a first offense a non-crime. Second and third offenses are misdemeanors and felonies, respectively.
And therein lies the defect in the law.
It’s not clear how many cases are affected by the appeals court ruling. The Broward Public Defender’s Office was unaware of any other juvenile sexting first-offense cases in Broward County, and the state’s Department of Juvenile Justice hasn’t kept track of first offenses because under the law, they are not considered crimes, said Heather DiGiacomo, the agency’s spokeswoman.
The appeals court ruled that because a first offense is not a crime, prosecutors do not have the authority to accuse a violator with a delinquent act. That leaves no one to bring a case in front of a judge to determine that a law was broken.
The girl, whose name is not included in court documents, was guilty of what Assistant Broward Public Defender Gordon Weekes called typical teenage behavior, with a modern technological twist.
“This whole sexting thing, it’s an electronic version of ‘You show me yours, and I’ll show you mine,'” said Weekes. “It would be dismissed as ordinary, childlike behavior if not for the digital element.”
For an adult to transmit nude photos of children could constitute child pornography, a felony. But until 2011, Florida law did not distinguish between child porn and adolescents experimenting with cell phone cameras. Offenders could have been charged with felonies and forced to register as sex offenders.
That changed when State Rep. Joseph Abruzzo, a Wellington Democrat, pushed a new law that drew a sharp contrast between misbehaving teenagers and lascivious adults.
When the girl identified only as “C.M.” in court papers sent a photo of her vagina to her classmate in 2013, she violated a law that was prepared to offer her a minimal penalty.
“We were trying to keep from giving kids criminal records,” said State Sen. Greg Evers, R-Escambia County. “The goal was to be more lenient with children, to allow them to go through the process without scarring their records for the rest of their lives.”
A first-offense violation of the juvenile sexting law carries no penalty. According to the law, it’s not a crime at all. Instead, it’s classified as “a noncriminal violation … punishable by eight hours of community service [or a $60 fine].”
The punishments would get harsher with a second offense, and even more severe with a third. But with no one to enforce a first offense, harsher penalties for future offenses are irrelevant, according to prosecutors, defense lawyers and legislators.
Weekes, who defended C.M., challenged the State Attorney’s Office authority to prosecute the case. Because the offense is not criminal, violating the law is not a “delinquent act,” Weekes argued. Prosecutors have no right to prosecute a juvenile for an act that’s not delinquent.
Assistant State Attorney Maria Schneider tried to salvage her office’s authority to prosecute, arguing that the state Legislature must have intended for the cases to be brought before judges.
Broward Circuit Judge Elijah Williams sided with Weekes, dismissing the case against C.M. Prosecutors appealed, and on Jan. 7, the Fourth District Court of Appeal upheld Williams’ ruling.
In its ruling, the appeals court faulted the legislature for failing to recognize it had crafted a law no one could enforce.
“Only the legislature can add to the sexting statute to set out the procedure for the prosecution and determination if there has been a violation of the first offense,” the appeals court ruled. “We are bound by the law as it was passed by the Legislature and not allowed to add language to or fill gaps in the statute.”
Evers, chairman of the state senate’s criminal justice committee, promised the legislature would correct its error in the next session, which begins in March.