“I raise up my voice—not so I can shout, but so that those without a voice can be heard … We cannot succeed when half of us are held back.”—Malala Yousafzai
The application of criminal sexual conduct statutes to juveniles and young adults often sparks frustration in the criminal defense bar. While the litany of state-sanctioned charging flaws is not limited to those listed here, the following examples give one a sense of why so many defense attorneys are upset: the unavailability of stays of adjudication dispositions—which allow a juvenile to avoid registration as a predatory offender—to extended jurisdiction juvenile offenders; statutory rape charges imposed on eighteen- year-olds who share a tryst or conceive a child with their fifteen-year- old high school sweethearts; mandatory registration as a predatory offender for child sexual abuse survivors who perpetrate a sex crime because they never received therapeutic help from the adults in their lives; and—perhaps worst of all—charging sexually exploited youth with prostitution or related offenses. These prosecutions are typically explained as a necessary evil, either because they are strict liability offenses or because the charge is a necessary conduit for desperately-needed rehabilitative services. This view, however, offers no solace for those facing the resulting devastation that convictions wreak on their young lives. Loss of employment and housing, permanent estrangement from families, rejection from society at large, and relegation to a lifetime of second-class citizenry are common results of these prosecutions.
The unjust nature of these results is magnified in juvenile court. Although juvenile prosecutions are ostensibly governed by the parens patriae doctrine, judges often impose consequences (such as registration as a predatory offender) that run counter to that protective policy. In light of this reality, one cannot help but conclude that skilled advocacy on a case-by-case basis is insufficient to address this injustice. The real root of the problem is the need for substantive policy changes.
Ideally, such policy changes would entail a comprehensive revamping of the criminal sexual conduct code as applied to juveniles, for the code, as it stands now, has not adjusted to changing social mores regarding adolescent sexual behavior, nor has it fully considered collateral consequences or alternative, less destructive means of correcting problematic sexual behaviors. However, such an effort would take a collective multidisciplinary effort that goes beyond the capacity of this article. Instead, this article attempts to address one of the most egregiously unjust areas of juvenile sexual offender prosecution: the widespread use of child pornography statutes to prosecute adolescents for sexting.
Minnesota courts and prosecutors must stop applying the child pornography statute to prosecute sexting between adolescent peers, particularly those who are sixteen years of age or older because it violates the purpose of the statute, is unconstitutionally vague, and violates the equal protection doctrine. Further, sexts between peers should not be classified automatically as child pornography under a strict liability analysis, but instead they should be screened to assess the alleged offender’s actual knowledge of its content and character as child pornography. Moreover, resulting prosecutions should be limited to clearly predatory cases.
This article begins by outlining the societal changes in our country’s teenagers precipitated by technology and changing moral values, as well as the growing challenge this presents to legal practitioners. Next, this article dissects Minnesota’s child pornography statutes and highlights constitutional challenges that can be made when the statutes are unjustly applied to juveniles who are not motivated by sexually predatory intent.