Jan 15, 2010 1:15 PM PST    Text size: 

Walters commented to XBIZ as a federal appeals court in Philadelphia weighs whether teenagers can be prosecuted for sexting under Pennsylvania child pornography laws.

Sexting is the widespread trend and widely criticized practice by teens of using cellphones to send sexually explicit photos of themselves.

The photos at issue in the Pennsylvania case include two girls, then 12-years-old, in training bras, and a 16-year-old wrapped in a towel with her breasts exposed. The girls in this case have not been accused of distributing the photos.

But Walters said that, based on his defense of individuals involved with sexting, minors shouldn’t be punished under existing child porn laws.

“Those laws were designed to punish a very different behavior commonly engaged in by pedophiles,” he told XBIZ. “Where the 'victim' is also the producer of the material, and the perpetrator of the 'crime,' the government should recognize that this is a unique circumstance, and take a different law enforcement approach.

“Sexting is the modern equivalent of students passing love notes to each other in class. Teens communicate with each other electronically more often than verbally. These communications are sometimes erotic, and that is human nature.”

Walters, of the Altamonte Springs, Fla.-based law firm Walters Law Group, noted that some states have considered changing laws to decriminalize sexting and reduce it to misdemeanor status. But he said legislatures should pass a separate sexting law for prosecutors to use instead of existing child porn statutes.

“To punish teens exploring their sexuality in this fashion as child sex offenders is outrageous, in my view,” he said. “This is a social problem, not a criminal problem. It should be addressed by the child's family, counselors, pastors and other positive influences — not by criminal prosecution and sex offender registration.”

In the case at hand in front of a panel of the 3rd Circuit U.S. Court of Appeals, the three teenage girls and their parents brought the case to federal court after the Wyoming County district attorney threatened to charge them with child pornography if they did not attend an after-school course and write an essay on why sexting is wrong.

The lower federal court stayed prosecution, and the appeals court will have to decide whether uphold the ban.