"Sexting" is the act of sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device. These messages, photos, and images are then often being further disseminated through email and internet-based social networking websites well beyond their original intended recipients. This behavior is a growing problem, receiving national attention in newspapers, on morning shows, news broadcasts, and the internet. It's happening all over the country, inMassachusetts, and right here in Berkshire County. Our youth are engaging in this risky behavior, which can pose great danger for themselves and others. In a number of jurisdictions, criminal charges have already been brought to address this behavior.

My Office has decided to be proactive in our approach to this problem. Through this press conference, I hope to inform parents, children, and educators of the serious nature of this issue, identify the potential criminal charges which could be brought in these circumstances, set out other potential consequences for this behavior, and to further identify resources for parents to help address and stop this behavior.

"Sexting" is a growing problem:

The National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmogirl.com recently published results of a "sex and tech" survey which explored the connection between teen sex and cyberspace. The survey polled 1280 teens and young adults between the ages of 13 and 26 about their cell phone, computer and digital device behaviors and attitudes. The results are disturbing:

  • 22% of teen girls (that's 1 in 5 , with11% between the ages 13-16) and 18% of teen boys have electronically sent or posted nude or semi-nude images of themselves
  • 33% of teen boys and 25% of teen girls say they have had nude or semi-nude images shared with them


The survey clearly showed that the notion that "sexting" is just "young people fooling around or experimenting" is false, as the statistics for this behavior rise even higher for young adults in their 20s.

  • 33% of young adults surveyed (both men and women ages 20-26) say they have sent or posted images of themselves

The survey also reported that sending sexually explicit messages is even more prevalent: 49% of all those surveyed indicated that they have sent these types of messages and more than 56% have received them. When asked why they do it, the answers ranged from "it's fun," "it's flirting," "it's a present for my boyfriend" to "it might help me to hook up with someone I like" or "it's just a joke." Although nearly 75% of those surveyed indicated that they believed that sending this type of material can have serious consequences, 25% percent suggested this behavior was "no big deal."

Young adults, their parents and the public must understand that this behavior is "a big deal." This behavior is serious and unsafe. It can have major consequences at home, in school, and in the community, both now and in the future. School administrators are working to educate their staff about "sexting", and are reviewing school cell phone use policies so they can respond appropriately to the problem. Parents also need to educate themselves about the problem of "sexting", including the potential consequences of this behavior, and the resources which can help them address the issue with their children.

Massachusetts Laws:

"Sexting" may violate the laws of the Commonwealth that were established to keep our children safe. The child pornography laws in Massachusetts are all felonies; they are quite serious, and there are no "lesser" charges (i.e. misdemeanors) that apply to this conduct. Incidents of "sexting" in Berkshire County will be taken very seriously, with law enforcement intervention if necessary.

Posing a Child in a State of Nudity or Sexual Conduct

It is illegal for anyone, with lascivious intent, to knowingly encourage, cause, coerce, solicit, or entice a person under 18 years of age - male or female - to pose or be shown in a state of nudity (or semi-nudity) for the purpose of photographing them.

Thus, in many circumstances, encouraging a person, even a friend, who is under 18 to take a photo of themselves nude, or of body parts considered sexual in nature, with their cell phone or digital camera, violates this statute.

Dissemination of Pictures of a Child in a State of Nudity or Sexual Conduct

It is illegal for anyone, with lascivious intent, to knowingly send out or disseminate pictures of a person under 18 (1) in a state of nudity (or semi-nudity) or (2) engaged in a sexual act.

Thus, for example, a sixteen year old who photographs him or herself nude, and sends it to their boyfriend or girlfriend, violates this statute.

A person who receives such a picture attached to an email, for example, and who knowingly forwards it to another person, may also be in violation of this law.

Possession of Child Pornography

It is illegal for anyone to knowingly possess photographs (in any format) which depict a person under the age of 18 posed with a lewd exhibition of genitals, buttocks, breasts or engaged in an actual or simulated sexual acts.

Having lewd photographs of another person's exposed genitals, for example, whether it be a friend or stranger, who is under 18, on your cell phone or home computer, violates this statute. Knowingly possessing it, even without sending it on to another person, is illegal.



Dissemination of Harmful Matter to a Minor

It is illegal for anyone to knowingly send to any person under the age of 18 matter considered to be "harmful. "Harmful matter" includes things that are obscene or pornographic in nature.

Thus when an 18 year old photographs his or her genitals, for example, and sends it to their 17 year old girlfriend or boyfriend, they are in violation of this statute.

As to each of these offenses:

Lascivious intent is defined as a state of mind where any person's sexual arousal or gratification is an objective.

The term knowingly is defined as either actually knowing, or being in possession of such facts that one should have reasonably known.

It does not matter that the person wanted to be photographed nude, or wanted to send or receive the photograph; the law deems the person under 18 incapable of consenting to the conduct.

The potential criminal penalty for these offenses runs up to 20 years in state prison, or by fines of up to $50,000, or by both fine and imprisonment.

Reasonable mistake of age is a potential defense that can be offered - but will be difficult to raise when the person depicted in the photo is a friend or classmate, or yourself.

The child pornography laws were created to protect children from predators; if you are disseminating pictures as described above, you are contributing to the problem by providing sexual predators with materials and opportunities for further exploitation. These photographs live on forever in cyberspace.

Other potential consequences:

A conviction in criminal court for "sexting" may have other serious consequences. In addition to the potential jail sentence and/or fine imposed by a Judge, a conviction for the offenses described above may require registration with the Sex Offender Registration Board for the next 20 years. Furthermore, the court may order the forfeiture and destruction of the computer or digital devices used.

A conviction for any of the above-described offenses results in a "felony conviction," which can trigger a restriction of school activities, such as sports, denial of college admission, and denial of student loan eligibility. A felony conviction mandates that a DNA sample be provided to the state. A felony conviction may also affect future employment opportunities, such as those offered in law enforcement and other high-security clearance positions.

Even without a criminal conviction, "sexting" may be addressed within the school, and could potentially result in suspension or expulsion. Persons who engage in "sexting" may also feel humiliation and emotional distress as a result of the ease and speed at which these images and information can be passed from person to person. It is critical that everyone understand that once a message, image, video or photo is on a cell phone or other digital device, it can be put on the internet for the whole world to access; it cannot be taken back.

Awareness and Resources:

It is my hope that we can address the problem of "sexting" through awareness and education, and that we can, working together, reduce the frequency and severity of these incidents. To be clear, we do not want to use the criminal justice system to punish young people for making poor choices using communication technology. This behavior, however, can have devastating and long-term consequences for all involved. As a result, many jurisdictions have felt compelled to use the criminal justice system, and we will as well if appropriate and necessary.

Parents must learn about the electronic communication and digital devices their children are using, how they are using them, and intervene when necessary so school personnel and law enforcement don't have to. As parents, we need to speak to our children about the acceptable uses of cell phones, computers and digital devices. We need to speak to our children about their own personal integrity, and help our children plan ways to resist peer pressure to engage in this behavior. I do not want parents to come in contact with my office because their son or daughter forwarded a sexually explicit photo, or because their child's photo has ended up "all over the internet."

Education is our greatest tool for prevention. To that end, during the past school year, the District Attorney's Office has provided 22 trainings for students throughout the county, as well as several school staff trainings, on bullying, cyberbullying and computer and internet safety. At one time, we mainly received calls for training from the middle and high schools for intervention and assistance; unfortunately, many more calls are now coming from the elementary schools.

It is important that students, school personnel, and parents all receive information and education on these topics. To that end, my office has also provided presentations for parents across the county; to date, these presentations have been poorly attended. We will continue to offer these presentations to school districts and communities upon request. If you are interested in attending a training in your community, please contact your school and make a request.

In the coming months, in addition to the training programs already offered by my Office, we will partner with Pittsfield Community Television (PCTV) to tape educational shows for the public. The topics will include bullying, cyberbullying, and internet safety as well as "sexting" and safety on the social networking sites. The programs will also be available for schools to use with students, staff, and parents.

I hope that local media attention to this topic will serve to raise our community awareness of this serious issue before it becomes a matter in criminal court. Resources are available through my office and other organizations to arm parents with information to protect their children and help prevent this behavior. If we address these issues together, we can achieve the ultimate goals of keeping children safe and reducing their risk of exploitation both now and in the future.