Legal issues affect psychiatrists as well as patients
As a psychiatrist evaluating K, what are your duties as a mandated reporter? Psychiatrists are legally required to report suspected maltreatment or abuse of children.12 The circumstances under which psychiatrists may have a mandate to report include when a psychiatrist:
- evaluates a child and suspects abuse
- suspects child abuse based on an adult patient’s report
- learns from a third party that a child may have been/is being abused.
Psychiatrists usually are not mandated to report other types of potentially criminal behavior. As such, reporting sexting might be considered a breach of confidentiality. Psychiatrists should be familiar with the specific reporting guidelines for the jurisdiction in which they practice. Psychiatrists who work with individuals who commit crimes should focus on changing the potentially dangerous behaviors rather than reporting them.
Does the transmission of naked photos of a minor in a sexual pose or act constitute child pornography or another criminal offense? The legal answer varies, but the role of the psychiatrist does not. Psychiatrists should educate their patients about potentially dangerous behaviors.
With regards to the legal consequences, some states classify underage sexting photos as child pornography. Others have less rigid definitions of child pornography and take into account the age of the participants and their intent. Such jurisdictions point out that sexting naked photos among adolescents is “age appropriate.” Some have enacted specific sexting laws to address the transmission of obscene material to a child through the Internet. In some jurisdictions, sexting laws are categorized to refer to behavior of individuals under or over age 18. The term “revenge porn” is used to refer to nonconsensual pornography with its dissemination motivated by spite.13 Some states have defined specific revenge porn laws to address the behavior. Currently, 20 states have sexting laws and 26 states have revenge porn laws.14 Twenty states address a minor age <18 sending the photo, while only 18 address the recipient. The law in this area can be complex and detailed, taking into account the age of the sender, the intentions of the sender, and the nature of the relationship between the sender and the recipient and the behavior of the recipient.
Laws regarding sexting vary greatly. Sexting may be a misdemeanor or a felony, depending on the state, the specific behavior, and the frequency. In the United States, 11 state laws include a diversion remedy—an option to pursue the case outside of the criminal juvenile system; 10 laws require counseling or another informal sanction; 11 states laws have the potential for misdemeanor punishment; and 4 state laws have the potential for felony punishment.14 Depending on the criminal charge, the perpetrator may have to register as a sex offender. For example, in some jurisdictions, a conviction for possession of child pornography requires sex offender registration. Thirty-eight states include juvenile sex offenders in their sex offender registries. Other states require juveniles to register if they are age ≥15 years or have been tried as an adult.15
The frequency of police involvement in sexting cases also greatly varies. A national study examining the characteristics of youth sexting cases revealed that law enforcement agencies handled approximately 3,477 cases of youth-produced sexual photos in 2008 and 2009.16 Situations that involved an adult or a minor engaged in malicious, nonconsensual, or abusive behavior comprised two-thirds of cases. Arrests occurred in 62% of the adult-involved cases and 36% of the aggravated youth-only cases. Arrests occurred in only 18% of investigated non-aggravated youth-only cases. Table 2 describes recent American sexting legal cases and their outcomes.
In K’s case, depending on the jurisdiction, K or her ex-boyfriend may be subject to arrest for child pornography, revenge pornography, or sexting.
