A student sends a nude image. A parent tells the school. Administrators investigate.
It’s a near-weekly occurrence on many high school campuses, but under the law, underage sexting is far from minor: It’s child pornography. Unwitting educators who make copies of the explicit exchanges could be charged with felonies. In some states, consenting 16- and 17-year-olds who create and receive the images could be prosecuted, too.
Take the case of Bradley Bass, a 32-year-old high school principal in Colorado, who faces 12 years in prison and the possibility of being branded a sex offender.
No one has accused him of having ill-intent when he investigated a parent’s tip that explicit images were being shared on Brush School District campuses last spring. He found photos on several boys’ phones and used his work cellphone to take photos of the students’ devices with the images displayed. The photos were then transferred to a confidential school server where other disciplinary evidence, like photos of vape pens and confiscated marijuana, was stored.
Bass didn’t know that doing so was legally akin to sexual exploitation of a minor. He’d never received training about how to investigate such a case.
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Still, he’s guilty, at least under the rigid terms of state law. He’s considering taking a plea deal — which would charge him with the misdemeanor of obstructing justice — so that he can continue to parent his toddler and baby boy.
“To have him labeled as a sex offender is the most ludicrous thing in the world,” said Bass’ mother, Sonya, a lifelong Brush resident.
Many sexting laws nationwide were drafted in the 1970s and 1980s, before cellphones and applications like Snapchat made it easy to share nude images. Some states, including Colorado, have decided teenagers who consensually sext shouldn’t face criminal charges.
But few, if any, states have carved out exceptions for adults who possess sexts without ill intent. And few, if any, require that teachers and administrators receive training about the legal liability they could face while investigating a report of sexting, experts say.
“I think the assumption is they know better, know how to respond. But in my experience, many don’t,” said Justin Patchin, a criminal justice professor at the University of Wisconsin-Eau Claire, who has researched cyberbullying and sexting laws.
In Colorado, the attorney general’s office and the education department don’t offer training on how to investigate sexting cases. The Colorado School Safety Resource Center, within the Department of Public Safety, provides information about consent and what charges juveniles could face for sexting, but not administrators’ liability.
Department of Public Safety spokeswoman Patricia Billinger said they recommend school administrators work with law enforcement on investigations, because sexting is potentially a criminal offense, and that law enforcement in turn should work closely with district attorneys.
Most educational associations declined to comment or did not respond to questions about whether they offered training or model policies on sexting investigations.
And Charles Russo, a past president of the Education Law Association, said school board members typically “don’t do enough to educate staff on sexting” or to stay informed about what’s happening on the ground in schools.
“With technology, you’ve got to keep up and be aware of what’s out there,” he said.
Brush School District Superintendent Bill Wilson declined to comment on behalf of the district and school board, saying they were continuing to “follow the legal processes.” The district is still working on a sexting policy, and will have a training for employees on the subject in January, Wilson said at a November court hearing.
Bass does not fault the school for lack of training.
The fact that teenagers sext is “not a surprise”
The lack of mandatory training comes as sexting has become nearly ubiquitous on school campuses nationwide.
More than a quarter of students between the ages of 12 and 17 had received a sext, and nearly 15% had sent one, according to a 2018 analysis of research findings. The numbers are slightly higher in Colorado, according to research from the Cyberbullying Research Center, which is co-directed by Patchin. Nearly 27% of adolescents received a sext in 2019, up from 15% in 2016. About 20% had sent one.
The prevalence of sexting and its spread to younger ages reflects how widespread cellphone use is and how easy it is to send explicit images, said Jeff Temple, an expert in adolescent health and social media whose 2011 research popularized the term “sexting.”
“The fact that 17-year-olds, 16-year-olds, 15-year-olds are sexting is not a surprise,” he said. “If we had phones back in the 1400s, those same ages would be sexting as well.”
Some legal and education experts believe attitudes and laws around sexting should change to reflect how common the practice is among teenagers naturally interested in sex.
Temple, for example, initially looked at sexting as a risky behavior, like using drugs or alcohol. His views have changed over time and he now believes coerced — but not consensual — sexting should be criminalized.
“If a 17-year-old is not interested in sex, I’d be worried — as a psychologist, I’d be worried,” said Temple, who is director of the Center for Violence Prevention at UTMB Health, part of the University of Texas system.
Few legislatures are willing to draw a clearer distinction between child porn and consensual sexting because of how politically unpopular it is to loosen laws around child exploitation, said Jonathan Phillips, a private attorney and former prosecutor in Fairfax, Virginia, who now advocates against stringent sexting laws.
He worked three times with a Virginia lawmaker to try to get passed a measure that would let prosecutors give teenagers who consensually sext a lighter sentence. It failed each time — driven by fears it could be exploited by a pornography “kingpin” or pedophile, Phillips said.
“That’s enough to scare them,” he said. “‘Oh, gosh, that anecdotal example could happen.’”
Refusing to create a separate process to handle consensual sexting cases means an adult possessing images of children being sexually abused is treated the same under the law as an administrator who makes a copy of an explicit image without lascivious intent, said Amy Hasinoff, a communication professor at the University of Colorado Denver who wrote the 2015 book “Sexting Panic: Rethinking Criminalization, Privacy, and Consent.”
“Penalties for child pornography are so incredibly harsh. They’re designed for what we imagine as an adult sexually abusing a child, filming it for their own gratification and then distributing it, selling it, providing it to others,” she said. “Pretty much everyone agrees that’s horrific. But that’s not what’s happening in all cases.”
Hasinoff advocated for a 2017 Colorado law that made consensual sexting a civil infraction punishable with a fine or an educational program. But she remembers hearing from opponents at the time that they didn’t want to encourage kids to sext by relaxing the penalties. She likened the reasoning to the thinking behind abstinence-only sex education.
“We are unable to first acknowledge that teenagers are having sex and they’re going to. And then because of that, we then don’t provide them with the resources they need to do it in safe and healthy ways,” Hasinoff said.
Experts warn of a chilling effect
Experts say the case in Brush could make students less likely to report harmful sexting incidents — those that aren’t consensual — because Bass was prosecuted. The alleged victim, the girl in the photos, and her parents have said they were happy with how Bass handled the sexting investigation and have asked police and the 13th Judicial District Attorney’s office to drop the case against the administrator. Prosecutors generally have broad discretion in choosing what cases to pursue and how to expend their resources.
“I don’t believe the decision to prosecute the administrator is doing anything to protect the girl from sexual exploitation — which is the intent of such laws,” Hasinoff said. “Instead, their decision to prosecute is likely making her life more difficult.”
Thirteenth Judicial District Attorney Travis Sides said that in most criminal cases, victims’ lives are made more difficult by a prosecution because they’re having to deal with the court system in addition to the psychological fallout of the original crime.
Many victims also oppose prosecutions, he added.
“A lot of victims of cases that get filed — not just in our jurisdiction but across Colorado, across the country — if they had a perfect world, they would prefer that charges not be filed. But as a prosecutor,” he said, “when you look at what the law requires, it requires us to enforce the law, and if there are violations of the law, to file charges.”
Sides spoke with Bass’ supporters outside the courthouse one afternoon not long after the case began. As he walked to his car, one woman told Sides it was hard to believe he wanted fairness for Bass and the school district, according to a video recording of the exchange.
“Well ma’am let me ask you this,” he responded, “do you want men to have nude images of your daughter on their phone?”
Sides cited Colorado’s child exploitation law, which says that each time child pornography is viewed, the person pictured is “revictimized.”
“We’re not going to see things just smooth out”
Jesse Weins, an Arizona State University researcher with expertise on sexting laws, said training for sexting investigations could be easily added on to mandatory training on the federal gender equity law Title IX, or may already overlap with antibullying and sexual harasment training required in some states. However, he said many educators already feel “trained to death” and view training as just a box to check each year.
Weins added it would be smart to have one administrator whose job it is to keep up to date on sexting laws and procedures. Other teachers would forward cases to that person when needed, similar to how educational institutions are now required to have a coordinator devoted to handling alleged Title IX violations.
Training on how to investigate sexting cases has been a topic at industry conventions for years, and Weins said he would be surprised if many teachers aren’t already familiar with the topic.
But he thinks the issue will continue to be messy.
“We’re not going to see things just smooth out,” he said, “as long as we keep a harsh line on what we mean by child pornography — that all of this is just regular child pornography — and kids keep having phones with cameras.”
UPDATED: The story was updated December 8 at 11:15 a.m to add comments from Patricia Billinger.