By Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On any given day, an online search for "sexting" news will likely not only uncover several sexting incidents, but a "scandal" and/or criminal activity. Since sexting seems to have originated as a teen phenomenon, educational institutions are often vulnerable to becoming involved in the news coverage and scandal, particularly if the sexting results in mass expulsions, the mishandling of evidence, criminal charges, or tragedy associated with an alleged overreaction or omission. In many respects, the sexting incidents in the news involve the more extreme cases in which a sexually explicit student photograph is widely disseminated and causes considerable disruption within the educational community. While such incidents occur with some frequency, there are many other sexting incidents which, with the responsible and informed response of administrators, staff, students, and parents, could be swiftly and discretely resolved.
Although the appropriate responses to cyber incidents are fact-dependent, each educational institution responding to a sexting incident must typically confront at least two legal issues, in addition to compiling and evaluating the facts. First, since the nature of the image may impact how it should be handled, does the image constitute child pornography? Second, should the educational institution report the image to Child Protective Services ("CPS")?
Since law enforcement or a prosecutor's office ultimately determines whether an image constitutes child pornography, administrators should always proceed with caution when handling a questionable student image for purposes of disciplinary or administrative proceedings. For instance, while not required, administrators may want to immediately contact law enforcement for assistance. Be aware that, due to the technical terms and definitions associated with child pornography, certain images of minors which are inappropriate and violative of student rules may nonetheless be legal. Since "child pornography" includes any "obscene" matter which depicts a person under the age of 18 years personally engaging in or personally simulating "sexual conduct" (Penal Code 311.2(b)), a photograph of a bare chest, for instance, may not constitute child pornography. (The terms "obscene" and "sexual conduct" are defined in Penal Code sections 311(a), 311.3, and 311.4.) While caution is advised when handling certain images, it should be noted that, in California, it is a crime to have "possession or control" of child pornography, which may include actively downloading and saving to a computer, printing, or emailing; whereas viewing child pornography is not a crime.
Concerning whether to report a student image to CPS, an educational institution will likely need to investigate further before making this determination. Penal Code Section 11166 requires a report to CPS if the educational institution knows or reasonably suspects a child has been the victim of "child abuse or neglect." "Child abuse or neglect" includes physical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse, neglect, the willful harming or injuring of a child or the endangering of the person or health of a child, and unlawful corporal punishment or injury. (Penal Code 11165.6.) Although "child abuse or neglect" does not include a mutual affray between minors, it does include such conduct as "sexual abuse" and "sexual exploitation," both of which are described with specificity in Penal Code section 11165.1. An attorney should be able to help the educational institution investigate the matter and navigate through the relevant and complex Penal Code provisions.
Regardless of whether a student image constitutes child pornography and/or must be reported to CPS, it is critical that each educational institution have board policies and regulations which address sexting, sexual harassment, technology use, bullying, and related discipline. While educational institutions must be careful to refrain from violating students' free speech rights by exceeding their jurisdiction, the policies and regulations should notify students that they could be disciplined for off campus conduct like sexting if it is related to school activity or attendance and causes or is reasonably likely to cause a substantial disruption to school activity. It is also advisable that administrators be familiar with California's laws regarding child pornography and reporting to CPS. Overall, these principles should contribute to a legal and discrete response to any sexting incident.
