PANAMA CITY — A recent appeals court decision determined a law prohibiting minors from sexting cannot be enforced because of how it was written.
The 4th District Court of Appeal recently upheld a lower court ruling that dismissed a prosecutor’s petition for delinquency against a teen accused of sending another teen a nude photo because she had not committed a delinquent act.
The 2011 law that prohibits underage sexting prescribes a noncriminal infraction for first-time offenders. After a first offense, the charge rises to a misdemeanor, and on the fourth offense it becomes a felony.
That first offense is “basically a traffic ticket,” said Assistant State attorney Megan Ford. Before the law, teens who sent nude photos of themselves to other teens could have been considered distributors of child pornography.
“The idea was not to make these kids sex offenders,” she said.
While lawmakers may have intended for the law to say the teen had, indeed, committed a delinquent act, that’s not how the law was actually written, the court ruling says. The law doesn’t give any court jurisdiction over teens charged with noncriminal violations. As a result, there can be no second offense because there can be no first offense — the law is effectively unenforceable.
Locally, even attempts to enforce it have been rare, said Megan Ford and Maj. Tommy Ford with the Bay County Sheriff’s Office, who are not related.
“It’s not common, but if it’s reported to us we’ll investigate,” Tommy Ford said of sexting.
He said investigators could look into whether a more serious crime had occurred, which is what happened in the only similar BCSO investigation he could recall.
Last year, several area high school students were involved in a sex party that was photographed, and those photos, depicting teens having sex, were widely distributed among peers. Investigators found hundreds of students had sent or received illicit photos from the party.
“Those photographs were transmitted among students and spread like wildfire. ... What do we do? Go find every kid that retransmitted that picture? No,” Ford said. “That’s not reasonable.”
The incident was reported to deputies as sexting, but investigators believed five juveniles had broken other, more serious, laws, and the five teens were charged with felonies. An adult was charged with a pair of misdemeanors for hosting the party.
When the Attorney General’s Office appealed the lower court decision, it argued that despite the language of the law, the intent of lawmakers was clear. But the court ruled it would be an abrogation of power to assume the role of the Legislature.
“... 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 court wrote in affirming the dismissal.
Legislation has been introduced in the Senate that would fix the law, but “no one on the House side has picked it up yet,” said freshman Rep. Jay Trumbull, R-Panama City.
Trumbull said he supports the original intent of the law, and he supports efforts to make it enforceable.