SMU Law Review


The "cyberworld" in which we live has fundamentally and irrevocably changed the nature of human interaction. For many, electronic mail, texting, and social networking sites have significantly limited traditional face-to-face interaction. While the benefits of technological progress are self-evident, the ease with which people can share personal information virtually has also produced troubling byproducts. The transmission of sexually provocative images between teenagers, known colloquially as "sexting," is one such example. As suicides and other sexting-related tragedies multiply, jurisdictions coast-to-coast are searching frantically for ways to curb the practice.

Due to the harshness of existing criminal statutes, legislators have favored the creation of a separate sexting offense to address misconduct. Because these new laws vary greatly in both content and severity of prescribed penalties, some have argued that they are unprincipled. In light of contemporary societal disinterest in prosecuting consensual sexual activity between adolescents, critics also consider them misguided and anachronistic. These allegations suffer from their failure to place anti-sexting initiatives in proper historical context. These laws represent a present-day manifestation of the protectionist and paternalistic impulses that motivated statutory rape laws in the 18th, 19th, and 20th centuries. Both anti-sexting and statutory rape laws share the same fundamental goal: avoiding reputational ruin and its untoward consequences. Whereas sexual intercourse was once the necessary catalyst, electronic devices used to disseminate sexually explicit material now create the risk. In today's virtual world, sexting represents a sort of statutory rape by proxy where cell phones, laptops, and iPads provide the violative act that can ruin lives. In sum, the campaign to outlaw sexting is neither misguided nor anachronistic. It reflects a widespread belief in the need to protect adolescents from sexting-related harm, coupled with a paternalistic desire to restore some of the moral innocence that is rapidly disappearing in the teenage cyberworld.

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