The United States House of Representatives has passed a bill to criminalize “sexting” among teenagers. But that's not all. This ominous bill also punishes their parents by making them face a 15-year mandatory, minimum sentence.
H.R. 1761, the Protecting Against Child Exploitation Act of 2017, seeks to “criminalize the knowing consent of the visual depiction, or live transmission, of a minor engaged in sexually explicit conduct, and for other purposes.”
“Any person who, in a circumstance described in subsection (f), knowingly—employs, uses, persuades, induces, entices, or coerces a minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, or transmitting a live visual depiction of such conduct; produces or causes to be produced a visual depiction of a minor engaged in any sexually explicit conduct where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or transmits or causes to be transmitted a live visual depiction of a minor engaged in any sexually explicit conduct.”
But the teenagers who are caught “sexting” are not the only ones who will be punished. The bill also states that “any parent, legal guardian, or person having custody or control of a minor" who “knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct knowing that a visual depiction of such conduct will be produced or transmitted shall be punished.”
As the Public Defender Blog points out:
The key words here are “knowingly permits.” That’s an extraordinarily low standard for a criminal offense. This language would apply to any parents who discover that their teenager is sexting with a romantic partner and then fail to cut off the child’s phone and internet access.
It is certainly justifiable for parents to take such decisive action when they catch their children sexting. But it is also understandable that some parents might prefer a different approach. Phones and the internet are essential to modern life, and parents might reasonably choose to tolerate sexting while warning their teenagers against it. Indeed, experts advise that parents should supervise their kids’ phone and internet use, but also caution that “throwing the book” at teens when they’re caught won’t do much good.
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Even if the clause that punishes parents was taken out of the bill, it still leaves the question of why 15-year-olds are being subjected to mandatory minimum sentences.
During a debate over the bill on the House floor, Rep. Bobby Scott (D-Virginia), noted that one of the most alarming parts about the bill is that it "explicitly states that the mandatory minimums will apply equally to an attempt or a conspiracy.”
“That means if a teenager attempts to obtain a photo of sexually explicit conduct by requesting it from his teenage girlfriend, the judge must sentence that teenager to prison for at least 15 years for making such an attempt,” Scott said. “If a teenager goads a friend to ask a teenager to take a sexually explicit image of herself, just by asking, he could be guilty of conspiracy or attempt, and the judge must sentence that teenager to at least 15 years in prison.”
Rep. Sheila Jackson Lee (D-Texas), ranking member of the House Judiciary Subcommittee on Crime, also noted that the bill raises "new constitutional concerns" and would arguably "exacerbate overwhelming concerns with the unfair and unjust mandatory minimum sentencing that contributes to the over-criminalization of juveniles and mass incarceration generally."
"While the bill is well intended, it is overbroad in scope and will punish the very people it indicates it is designed to protect: our children," Lee said.
The bill, which was introduced by Rep. Mike Johnson (R-Louisiana) in March, passed in the House of Representatives last week with a larger majority. It was opposed by 53 Democrats, and just two Republicans—Reps. Justin Amash (R-Mich.) and Thomas Massie (R-Ken.).
While supporters of the bill argue that each individual case would be up to the discretion of the judge, the fact is that if this bill becomes law, and it includes a 15-year, mandatory minimum sentence, it will set a troubling precedent for both teenagers, and their parents. It also serves as a reminder that making something “illegal” won’t scare teenagers out of doing it—instead, it will just create another way for the government to meddle in the personal lives of citizens, and it will do so by punishing only the ones who are caught.