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United States v. Streett

United States District Court, D. New Mexico

January 15, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
BENTLEY A. STREETT, Defendant.

          John C. Anderson, United States Attorney, Sarah Jane Mease, Nicholas Jon Ganjei, Alexander Mamoru Max Uballez, Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico, Attorneys for the Plaintiff

          Alexandra W. Jones Jones Law Firm, LLC, Robert R. Cooper Johnn S.L. Osborn Robert Cooper Law Firm Harry I. Zimmerman Harry Ira Zimmerman Attorney at Law, Martin Lopez, III Martin Lopez, III, P.C. Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION [1]

         THIS MATTER comes before the Court on: (i) the Defendant's Motion to Dismiss Counts 3 Through 7 of Second Superseding Indictment, filed December 1, 2017 (Doc. 77)(“Motion”); (ii) the Defendant Bentley Streett's Motion to Dismiss Proposed Findings of Fact and Conclusions of Law, filed November 1, 2018 (Doc. 167)(“Streett's Proposed Findings”); and (iii) the United States' Proposed Findings of Fact and Conclusions of Law (September 10, 2018 Evidentiary Hearing), filed November 1, 2018 (Doc. 166)(“United States' Proposed Findings”). The Court held a motion hearing on June 25, 2018, and an evidentiary hearing on September 10, 2018. The primary issues are: (i) whether Defendant Bentley A. Streett has standing to make a facial challenge to 18 U.S.C. § 2251(a), even though Streett does not allege that the statute is unconstitutional as applied to him; (ii) whether § 2251(a) applies to juveniles; (iii) whether teenage sexting that falls under § 2251(a)'s ambit is constitutionally protected speech under the First Amendment to the Constitution of the United States of America; and (iv) whether § 2251(a) is overbroad, and creates a realistic risk of chilling or infringing on protected speech. At the evidentiary hearing, the Court indicated its inclination to deny the Motion. The Court concludes that: (i) Streett has standing to make a facial challenge to § 2251(a) as unconstitutionally overbroad, because First Amendment jurisprudence grants defendants standing for overbreadth challenges even when the defendant does not allege that the statute is unconstitutional as applied to him or her; (ii) from the statute's plain language, § 2251(a) applies to juveniles; (iii) teenage sexting that falls within § 2251(a) is not protected speech, because it still constitutes criminal child abuse bringing it within the First Amendment's categorical exception for child pornography; and (iv) § 2251(a) is not unconstitutionally overbroad, because it does not create a realistic risk of chilling or infringing on protected speech. Accordingly, the Court denies the Motion.

         FACTUAL BACKGROUND

         Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion shall serve as the Court's essential findings for rule 12(d) purposes. In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege.”). Having heard and read the evidence presented, both at the hearing and in articles presented to the Court in the briefing and at the hearing, the Court makes the following findings of fact.[2]

         1. The Experts' Backgrounds.

         1. The United States' expert witness, Sueann G. Kenney-Noziska, is a licensed clinical social worker and registered play therapist[3] supervisor. See Transcript of Motion Proceedings at 65:13-17 (Kenney-Noziska)(taken September 10, 2018), filed September 28, 2018 (Doc. 158)(“Sept. Tr.”).

         2. Kenney-Noziska works exclusively with “abused and traumatized children and adolescents.” Sept. Tr. at 66:21-22 (Kenney-Noziska). See id. at 66:22-23 (Kenney-Noziska).

         3. In 2016, at the National Center for Missing and Exploited Children's (“NCMEC”)[4]invitation, Kenney-Noziska attended two and one-half days of training “regarding exploited and missing children, so that [she] can provide services when NCMEC needs them in [New Mexico].” Sept. Tr. at 71:4-6 (Kenney-Noziska). See id. at 70:24-71:6 (Kenney-Noziska).

         4. Such services for NCMEC “would include working with children who have been, not only physically or sexually abused in person, but also abused through exploitation.” Sept. Tr. at 71:16-18 (Mease). See id. at 71:7-19 (Mease, Kenney-Noziska).

         5. Kenney-Noziska's areas of specialization are: “Clinical treatment for children and teens”; “outpatient”; “child abuse and neglect or child maltreatment, ” which includes[5] “sexual abuse, sexual trauma, and sexual exploitation.” Sept. Tr. at 72:8-16 (Kenney-Noziska, Mease).

         6. Kenney-Noziska's training also “encompass[es] childhood development and adolescent development.” Sept. Tr. at 73:5-6 (Kenney-Noziska).

         7. Kenney-Noziska has presented trainings in which “child and adolescent development is interwoven.” Sept. Tr. at 73:15-16 (Kenney-Noziska).

         8. The children who come to see Kenney-Noziska “all fall on the trauma continuum, ” Tr. 104:3 (Kenney-Noziska), and are “almost exclusively” “sexually traumatized, ” Sept. Tr. at 104:4-5 (Zimmerman).

         9. Streett's expert witness, Dr. Victor C. Strasburger, worked at the University of New Mexico School of Medicine for twenty-eight years as a professor of pediatrics. See Sept. Tr. at 140:15-18 (Strasburger, Zimmerman); id. at 141:13-15 (Strasburger).

         10. Dr. Strasburger also “worked for 18 years at [Sequoyah] Adolescent Treatment Center helping to treat some of the most severe kids in New Mexico for a variety of offenses.” Sept. Tr. at 141:17-20 (Strasburger).

         11. In 1982, Dr. Strasburger joined the Task Force on Children and Television at the request of the American Academy of Pediatrics, and began “studying children and the media.” Sept. Tr. at 142:3-4 (Strasburger). See id. at 140:24-142:4 (Strasburger).

         12. Dr. Strasburger “ha[s] authored or co-authored most of the American Academy of Pediatrics policy statements on Children, Adolescents, and the Media.” Sept. Tr. at 142:7-9 (Strasburger).

         13. The American Academy of Pediatrics has awarded Dr. Strasburger the highest awards available in adolescent medicine and in children and media advocacy. See Sept. Tr. at 142:14-17 (Strasburger).

         14. Dr. Strasburger has authored thirteen books, including four textbooks, on Children, Adolescents, and the Media -- one of these textbooks is widely used in college communications courses around the United States. See Sept. Tr. at 142:7-12 (Strasburger); id. at 142:21-143:2 (Zimmerman, Strasburger).

         15. Dr. Strasburger has lectured “about 500 times in [his] career on various continents, including Europe, Asia, and Australia, ” and in forty-seven of the fifty states. Sept. Tr. at 143:5-7 (Strasburger). See id. at 143:10 (Strasburger).

         16. Since 2010, “[v]irtually every lecture [Dr. Strasburger has] given . . . has included sexting.” Sept. Tr. at 143:17-18 (Strasburger).

         2.The Definition of “Sexting.”

         17. The media has coined the term “sexting, ” a portmanteau of “sex” and “texting, ” which has a number of definitions and commonly includes the sharing of sexually explicit images, videos, or messages with peers. See Sept. Tr. at 75:10-12 (Kenney-Noziska); id. at 82:20-22 (Kenney-Noziska)(describing the images and videos considered sexts as “naked portrayals”); id. at 106:11-13 (Zimmerman)(describing sext messages as including “sexually explicit verbiage”); id. at 202:23-203:2 (Strasburger)(stating that the consensus is that sexting includes any sexual images, videos, or text messages); Nat'l Ctr. for Missing & Exploited Children, Policy Statement on Sexting at 1 (Sept. 1, 2009), filed December 1, 2017 (Doc. 77-2)(“NCMEC Statement”); Sheri Madigan et al., Prevalence of Multiple Forms of Sexting Behavior Among Youth: A Systemic Review and Meta-Analysis, 172 JAMA Pediatrics 327, 328 (2018)(submitted to the Court at the September 10, 2018, evidentiary hearing as Plaintiff's Hearing Exhibit 5)(“Meta-Analysis”).

         18. “Sexting” is “a popular term among the public” used broadly to encompass a wide variety of content. Kaitlin Lounsbury et al., The True Prevalence of “Sexting” at 6 (Crimes Against Children Research Ctr., 2011), filed July 9, 2018 (Doc. 137-2)(“True Prevalence”).

         19. The term “sexting, ” “is most commonly used to describe the creation and transmission of sexual images by minors.”[6] True Prevalence at 3.

         20. In the study “Sexting: A Typology, ” the authors reviewed 550 cases of “youth-produced sexual images, ” which are “images of minors created by minors that could qualify as child pornography under applicable criminal statutes.” Janis Wolak & David Finkelhor, Sexting: A Typology at 2 (Crimes Against Children Research Ctr., 2011), filed July 9, 2018 (Doc. 137-1)(“Typology”).

         21. Professors Janis Wolak and David Finkelhor divide sexting into two broad categories: “experimental” and “aggravated.” Typology at 2. See Sept. Tr. at 83:21-23 (Kenney-Noziska).

         22. “Experimental” sexting is defined as youth-produced images sent “to established boy- or girlfriends, to create romantic interest in other youth, or for other reasons such as attention-seeking.” Typology at 2. See Sept. Tr. at 85:12-17 (Kenney-Noziska)(describing experimental sexting as teen-produced, shared with a teen peer, in a romantic relationship or to seek sexual attention); id. at 130:4-16 (Zimmerman, Kenney-Noziska)(underlining the consensual nature of such sexts); id. at 171:11-172:18 (Strasburger, Zimmerman)(describing consensual sexting as the new way of flirting). See also Streett's Proposed Findings ¶ 2, at 7 (“Experimental sexting is consensual.”).

         23. Experimental sexting does not involve “malice or misuse or other criminal use of the image.” Sept. Tr. at 85:20-21 (Kenney-Noziska).

         24. Experimental sexting is produced by teenagers, for teenagers. See Sept. Tr. at 108:19-23 (Kenney-Noziska).

         25. Experimental sexting could include images of genitalia or breasts. See Sept. Tr. at 130:9-12 (Zimmerman, Kenney-Noziska).

         26. “Aggravated” sexting, on the other hand, “involve[s] criminal or abusive elements beyond the creation, sending or possession of youth-produced sexual images.” Typology at 2. See Tr. at 84:1-7 (Kenney-Noziska).

         27. There must be some “additional act beyond what was anticipated or consented to by the person producing th[e] photograph” for it to become an aggravated sext. Sept. Tr. at 109:8-10 (Zimmerman). See id. at 109:8-14 (Zimmerman, Kenney-Noziska); id. at 172:11-18 (Zimmerman, Strasburger)(describing such situation as cyber bullying).

         28. Where the original, consensual sext is disseminated beyond its intended recipient, it becomes nonconsensual, and can be a form of cyber bullying or revenge pornography. See Sept. Tr. at 109:15-25 (Zimmerman, Kenney-Noziska); id. at 172:14-18 (Strasburger).

         29. Such aggravated or nonconsensual sexting includes sexts exchanged between a teen and an adult. See Typology at 2; Sept. Tr. at 84:1-7 (Kenney-Noziska); id. at 170:14-16 (Strasburger).

         30. Other instances of aggravated or nonconsensual sexting, besides adult involvement or criminal or abusive behavior, include creating or sharing an image without consent, sharing a sext with the intent to cause harm, and obtaining sexts via coercion or other non-consensual means. See Typology at 2; Tr. at 84:1-86:2 (Kenney-Noziska, Mease).

         31. “[S]exting episodes are very diverse and complex and cannot be categorized or generalized very easily, ” Typology at 10, so “it is important not to oversimplify the behavior, ” United States' Proposed Findings ¶ 2, at 2.

         32. Sexts can change categories over time and, thus, should not be confined to one category at production -- for example, if an experimental sext is later shared without consent, it may be classified as an aggravated sext. See Sept. Tr. at 94:2-10 (Mease, Kenney-Noziska); id. at 133:17-21 (Mease, Kenney-Noziska); id. at 138:10-18 (Zimmerman, Kenney-Noziska); id. at 172:11-18 (Zimmerman, Strasburger).

         3. The Prevalence of Teenage Sexting.

         33. A sext could be considered child pornography and regulated by 18 U.S.C. § 2251(a) if it contains “sexually explicit conduct, ” which is defined as “actual or simulated -- (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A).

         34. Determining the percentage of teenage sexting which falls under the federal definition of child pornography from the available studies “is difficult, due to differences in defining sexting, failure to limit studies to minors or other issues with study representation, limiting studies to internet users, and how broadly the questions are phrased.” Streett's Proposed Findings ¶ 1, at 4-5 (citations omitted). See Sept. Tr. at 86:3-87:2 (Mease, Kenney-Noziska); id. at 203:3-22 (Mease, Strasburger); id. at 205:22-210:2 (Mease, Strasburger); Motion app. A. at 34-45; Anne S. Frankel et al., Sexting, Risk Behavior, and Mental Health in Adolescents: An Examination of 2015 Pennsylvania Youth Risk Behavior Survey Data, 88 J. Sch. Health 190, 191, 196 (2018)(submitted to the Court at the September 10, 2018, evidentiary hearing as Defendant's Hearing Exhibit L)(“2015 Pennsylvania Survey”); Manual Gámez-Guadiz & Patricia de Santisteban, “Sex Pics?”: Longitudinal Predictors of Sexting Among Adolescents, 63 J. Adolescent Health 608, 613 (2018)(submitted to the Court at the September 10, 2018, evidentiary hearing as Defendant's Exhibit M)(“Sex Pics”); Meta-Analysis at 333; Kimberly J. Mitchell et al., Prevalence and Characteristics of Youth Sexting: A National Study, Pediatrics, Jan. 2012, at 1, 2, 7, filed December 1, 2017 (Doc. 77-4)(“Prevalence and Characteristics”); True Prevalence at 3-6; Typology at 3.

         35. Dr. Strasburger could not comment as to how the prevalence of teenage sexting applies to the federal statute at issue, or the percentage of teenage sexting to which the statute applies. See Sept. Tr. at 212:3-24 (Mease, Strasburger).

         36. “[T]he term sexting ‘has come to encompass too many activities to make it an appropriate term for formal research.'” United States' Proposed Findings ¶ 5, at 3 (quoting True Prevalence at 6).

         37. There is no consensus as to the prevalence of teenage sexting, with current literature estimating that the rate ranges between 1.3% to 60%. See Meta-Analysis at 328. See also True Prevalence at 6 (“However, analysis of the relevant research to date reveals that there is little consistency in the estimated prevalence of sexting among adolescents.”).

         38. With current consensus figures showing twenty-two million teenagers aged thirteen to seventeen, Dr. Strasburger estimated that three million (15%) teenagers have sent a sext, and six million (30%) teenagers have received a sext. See Sept. Tr. at 174:12-18 (Strasburger).

         39. “In discussing the prevalence of sexting, Dr. Strasburger relied heavily upon three fairly recent studies” -- (i) the Meta-Analysis; (ii) the 2015 Pennsylvania Survey; and (iii) Sex Pics -- which range in their published prevalence rates from 10.7% to 29%, and included data which fall outside the federal definition of child pornography. United States' Proposed Findings ¶ 6, at 3-4.

         40. The Meta-Analysis, performed in 2018, looked at thirty-nine prior studies and concluded that “[t]he prevalence of sexting has increased in recent years and increases as youth age, ” Meta-Analysis at 327, “with the prevalence increasing each year until youth reach the age of 18 years, ” Meta-Analysis at 328.

         41. Dr. Strasburger stated that the Meta-Analysis and the studies following it “are consistent and consistently show increasing levels of sexting, and increasing sexting as teenagers get older.” Sept. Tr. at 201:13-15 (Strasburger).

         42. The Meta-Analysis, in analyzing thirty-nine studies with at total of 110, 380 participants age 11.9 to 17.0, determined “that a sizable minority of youth engage in sexting (1 in 7 sends sexts, while 1 in 4 receives sexts), with rates varying as a function of age, year of data collection, and method of sexting.” Meta-Analysis at 332. See id. at 327; Sept. Tr. at 172:24-173:13 (Strasburger)(discussing the Meta-Analysis' figures for consensual sexting as the “best estimate currently”).

         43. Specifically, the Meta-Analysis concluded that the mean prevalence of sending a sext in this age group is 14.8%, the mean prevalence for receiving sexts is 27.4%, the mean prevalence for forwarding a sext without consent is 12.0%, and the mean prevalence of having a sext forwarded without consent is 8.4%. Meta-Analysis at 327, 332-33.

         44. Several studies that find higher rates of sexting, however, present methodological problems. Some studies that Streett cites rely on polling samples that included eighteen- and nineteen-year-olds -- who are statistically more likely to engage in sexting than younger teenagers -- and the studies use ambiguous definitions of sexting that may not amount to content that § 2251(a) proscribes. See True Prevalence at 2-6 (noting that several frequently cited studies use definitions that “could include many types of images that are not illegal under federal law”); Prevalence and Characteristics at 1 (concluding that one percent of “youth had appeared in or created nude or nearly nude pictures or videos, ” a definition far broader than that which § 2256(2)(A) provides).

         45. The Meta-Analysis also has limitations, for it did not discuss the content of the images or videos that the underlying studies asked about and relied on studies which included “sexually explicit messages” as a form of sexting, so it is impossible to know which proportion of the prevalence rates it provides would fall within the federal definition of “sexually explicit.” Meta-Analysis at 330. See United States' Proposed Findings ¶ 7(a)-(b), at 4-5 (stating that “over one-third of the studies included in the aggregate prevalence rates rely on data that could not be considered sexually explicit under the federal statutory definition); Sept. Tr. at 203:11-22 (Mease, Strasburger)(discussing how different definitions of sexting are used in the various studies and that there is no standardization in the research).

         46. The Meta-Analysis also did not consider the recipient of the youth-produced sext, i.e., whether it was sent to an adult or a peer, and it relied on studies that included data relating to nonconsensual sexting (specifically, the sharing of sexts without consent), so its aggregate prevalence data does not relate solely to consensual sexting between teenagers. See Meta-Analysis at 330; United States' Proposed Findings ¶¶ 7(c)-(d), at 5; Sept. Tr. at 88:1-12 (Mease, Kenney-Noziska); id. at 209:1-9 (Mease, Strasburger).

         47. The 2015 Pennsylvania Survey noted that “adolescents in general do not think sexting is a problem and it has become commonplace in youth behavior, limiting [the] possible bias” of teenagers being dishonest in reporting their sexting activities. 2015 Pennsylvania Survey at 196.

         48. The 2015 Pennsylvania Survey determined that, of 6, 021 participating high school students, 29% “reported engaging in consensual sexting (sending or receiving a sext) and 3% in nonconsensual sexting, ” 2015 Pennsylvania Survey at 193, in the last thirty days, see 2015 Pennsylvania Survey at 192.

         49. The 2015 Pennsylvania Survey surveyed high school students in the 12th grade, so it includes eighteen-year-old students, and used a broad definition of sext -- “a revealing or sexual photo of yourself” -- so it does not help to determine which portion of minors' consensual sexting would fall under 18 U.S.C. § 2251(a)'s auspices. 2015 Pennsylvania Survey at 192. See United States' Proposed Findings ¶ 8(a), at 6.

         50. The Sex Pics study sampled 1, 208 students between twelve and sixteen years old in Spain over a one-year period, finding that 10.7% reported sending a sext at the baseline period and 19.2% reported sending at the one-year follow up. See Sex Pics at 3-4.

         51. Sex Pics' definition of sexting exceeds the federal definition of “sexually explicit conduct, ” as Sex Pics defines sexting as sending: (i) “written information or text messages with sexual content about you”; (ii) “pictures with sexual content (e.g., naked) about you”; or (iii) “images (e.g., via web-cam) or videos with sexual content about you.” Sex Pics at 3.

         52. The Prevalence and Characteristics study attempted to determine whether the images that adolescents sent were sexually explicit by asking 1, 560 adolescents age ten to seventeen whether they had received, forwarded, appeared in, or created “nude or nearly nude images or videos, ” Prevalence and Characteristics at 3 tbl. 1 (title case omitted), and by asking those who responded affirmatively whether those images or videos “showed breasts, genitals, or someone's bottom, ” Prevalence and Characteristics at 4. See Prevalence and Characteristics at 2-4.

         53. The Prevalence and Characteristics study found that 1.2% of the respondents appeared in or created an image that met the study's definition of sexually explicit, and 5.9% of the respondents received an image that met the study's definition of sexually explicit; the study's definition of the term “sexually explicit” is still more inclusive than 18 U.S.C. § 2256(2)(A)'s definition.[7] See Prevalence and Characteristics at 4; United States' Proposed Findings ¶ 10(a), at 7.

         54. Four categories of images that the Prevalence and Characteristics study asked about could meet § 2256(2)(A)'s definition of “sexually explicit conduct” and thus fall under§ 2251(a): (i) “genitals”; (ii) “someone completely nude”; (iii) “sexual intercourse”; and (iv) “masturbation, ” Prevalence and Characteristics at 6 -- although (i) and (ii) would not automatically meet § 2256(2)(A)'s definition, as it requires “lascivious exhibition of the genitals or pubic area, ” 18 U.S.C. § 2256(2)(A). See United States' Proposed Findings ¶ 10(b), at 7-8.

         55. Prevalence and Characteristics shows that 0.13%[8] of adolescents creating or appearing in such images and 1.06%[9] of adolescents receiving such images would plainly meet § 2256(2)(A)'s definition of “sexually explicit conduct” and thus fall under § 2251(a). See Prevalence and Characteristics at 6 tbl. 3.

         56. That more recent studies found a higher prevalence of teenage sexting “was not surprising, ” because “smartphone ownership [has] becom[e] near ubiquitous in recent years, ” and smartphone applications “have been developed that may (seemingly) facilitate privacy in the sharing and storing of videos/images.” Meta-Analysis at 332.

         57. In 2015, 88% of American teenagers aged thirteen to seventeen reported that they have access to some type of cellular telephone, and 90% of those teenagers with cellular telephones reported exchanging texts -- teenagers sent and received a median of thirty texts per day. See Amanda Lenhart et al., Pew Research Ctr., Teens, Social Media & Technology Overview 2015: Smartphones Facilitate Shifts in Communication Landscape for Teens at 5, 9 (2015), filed December 1, 2017 (Doc. 77-3)(“Social Media”).[10]

         58. “Smartphones are just 10 years old now. But the most recent research shows 95 percent of teenagers have access [to] or own a smartphone.” Sept. Tr. at 170:10-12 (Strasburger).

         59. The growing availability of smartphones means the prevalence of teenage sexting will also grow. See Sept. Tr. at 175:14-19 (Strasburger, Zimmerman)(discussing how “the vast majority of sexting appears to be via smartphone” and how numbers are growing); id. at 120:22-121:19 (Zimmerman, Kenney-Noziska)(discussing how the prevalence of sexting is growing and with smartphones it is “likely to increase”).

         60. A survey of 1, 560 internet users age ten to seventeen conducted between August, 2010, and January, 2011, determined “national prevalence estimates” for various definitions of sexting, which revealed an estimate of a rate of involvement of 1% where sexting is defined as “youth creating images of themselves that include their naked breasts, genitals, or bottom.” Prevalence and Characteristics at 5.

         61. The Prevalence and Characteristics survey also concluded that “[t]he percentage of youth who have, in the past year, appeared in or created sexually explicit sexual images that potentially violate child pornography laws is low (1%), ” but that this is “still a considerable number of youth[, which] raises the question of how the law should treat such cases.” Prevalence and Characteristics at 6-7.

         62. A “factsheet” presenting critiques of sexting studies concluded: “While sexting does seem to occur among a notable minority of adolescents, there is little reliable evidence that the problem is as far-reaching as many media reports have suggested.” True Prevalence at 1, 6.

         4. The Inherent Harm in Teenage Sexting.

         63. There is not a consensus whether experimental or consensual sexting is normative developmental behavior. See Sex Pics at 1 (“It has been pointed out that sexting can be a normal form of intimate expression and communication in sexual and romantic relationships. . . . Sexting may be particularly problematic during adolescence . . . .”). Compare Sept. Tr. at 91:11-13 (Kenney-Noziska)(“I would consider the experimental sexting as something that could potentially be developmentally appropriate . . . .”), and Typology at 4 (“We use the term ‘Experimental' because, while there is no evidence that this behavior is normative, these incidents appear to grow out of typical adolescent impulses . . . .”), with Sept. Tr. at 175:20-176:1 (Zimmerman, Strasburger)(stating that experimental sexting is “[a]bsolutely” “a normative part of adolescent growth”).

         64. Aggravated or nonconsensual sexting, on the other hand, is clearly not normative developmental behavior. See Sept. Tr. at 93:20-23 (Mease, Kenney-Noziska)(stating that aggravated sexting is placed in the “atypical development” category, as opposed to normative); id. at 147:8-12 (Strasburger)(stating that “there is a major distinction between consensual sexting, where no one is hurt” and nonconsensual, “coercive sexting, ” which are “clearly examples of child abuse”).

         65. Current literature suggests that the human brain is not fully developed until around age twenty-five to twenty-seven. See Sept. Tr. at 78:23-25 (Kenney-Noziska).

         66. Adolescents therefore do not have “complete development of the prefrontal cortex, ” Sept. Tr. at 79:19-20 (Kenney-Noziska), and, because of that, often engage in risk-taking behavior, see Sept. Tr. at 79:17-19 (Kenney-Noziska), and lack the “ability to delay gratification” so they are “more impulsive than somebody with a mature brain, ” Sept. Tr. at 81:3-5 (Kenney-Noziska). See also Sept. Tr. at 170:20-171:3 (Strasburger)(stating that “teenagers are programmed to do dumb things . . . until about age 25” and that they do not “have impulse control” or “judgment from the prefrontal cortex”).

         67. Even consensual sexts carry risks, because one the image is sent it is completely out of the adolescent's control and could be shared at any time without the adolescent's consent and quickly evolve into an aggravated sext. See Tr. at 133:2-21 (Mease, Kenney-Noziska).

         68. Similarly, 69. Adolescents often will consensually take and send images to or do things for a person who they believe loves them, but is actually exploiting or trafficking them, and the adolescents do not realize that they are being exploited or victimized. See Sept. Tr. at 113:12-15 (Kenney-Noziska).

         70. Once an image has been shared online there is really no way of retrieving the image, and so there is potentially no end to the exploitation and victimization, making it much harder for the adolescents pictured to recover and heal from the trauma of knowing those images are publicly available. See Sept. Tr. at 97:13-98:2 (Kenney-Noziska); Mary Graw Leary, Self-Produced Child Pornography: The Appropriate Societal Response to Juvenile Self-Sexual Exploitation, 15 Va. J. Soc. Pol'y & L. 1, 10 (2007), filed July 9, 2018 (Doc. 137-3)(“Societal Response”)(stating that child pornography “is a crime of perpetuity where every time an image is distributed the victim is revictimized”).

         71. While “sexting can be a normal form of intimate expression and communication in sexual and romantic relationships, ” it “may be particularly problematic during adolescence because teens are not fully developed in their decision-making and recognition of long-term consequences of sharing sexual content.” Sex Pics at 1. See Typology at 8 (“Learning about romantic and sexual relationships is a key task of adolescence in our culture, which provides very mixed messages about appropriate sexual behavior.”); Sept. Tr. at 79:19-20 (Kenney-Noziska)(discussing the risk-taking behavior that adolescents engage in because of their lack of having a fully matured brain).

         72. Adolescence is an anxiety-filled period, so teenagers experiencing transitional and social anxiety on a daily basis is not unusual. See Sept. Tr. at 138:6-9 (Zimmerman, Kenney-Noziska); id. at 188:1-9 (Zimmerman, Strasburger); 2015 Pennsylvania Survey at 191 (“[N]early 32% of youth ages 13-18 have been diagnosed with an anxiety disorder . . . .”).

         73. “The sharing of sexual images, while risqué in one cultural dimension, may also be a form of sexual sharing that has some comparative safety to it in contrast to face-to-face sexual intimacy, since it can be engaged in outside the presence of the other person. Thus the feelings of immediate embarrassment may be more manageable, a youth can control how she or he appears to another, and the pressure for additional sexual intimacy is not so intense and immediate, as it might be in a face-to-face sexual encounter.” Typology at 9 (footnote omitted).

         74. The Meta-Analysis reveals that sexting increased with age, which “is expected and generally corresponds to the age of sexual identity and exploration, which lends credence to the notion that youth sexting may be an emerging, and potentially normal, component of sexual behavior and development.” Meta-Analysis at 332. See id. at 332 (“It is possible that [sexting] may be a normal part of sexual behavior and identity formation in the digital age.”).

         75. Kenney-Noziska has had teenage patients who, while already in treatment, shared their worry, or short-term preoccupation about having sent an experimental sext but has not had a teenager request therapy because of sending an experimental sext -- it is not “a separate clinical issue.” Sept. Tr. at 96:21-22 (Kenney-Noziska). See id. at 96:12-22 (Kenney-Noziska); id. at 126:3-7 (Kenney-Noziska, Zimmerman)(confirming that engaging in experimental sexting is “not a reason that [a teenager] would present or have presented for me in treatment, ” because it generally does not cause trauma).

         76. When teenagers present with regret or anxiety over sending an experimental sext, Kenney-Noziska typically sees “transient anxiety” over sending a sext, which is “mostly contained to that moment and the impact of sending that sext, and then a preoccupation with” the ramifications, but that she has not seen this “lead to a separate clinical issue in and of itself.” Sept. Tr. at 132:9-11, 14-15 (Kenney-Noziska). See id. at 132:8-17 (Kenney-Noziska).

         77. A teenager who sends a sext consensually could also later regret this sext as he or she grows older, see Sept. Tr. at 194:18-22 (Strasburger), but teenagers often do things that they later regret and they “have to make mistakes in order to gain a sense of mature judgment, ” Sept. Tr. at 195:12-13 (Strasburger). See also Sept. Tr. at 237:11-24 (Zimmerman, Strasburger).

         78. The danger in teenager sexting lies in “the cyber bullying aspect, ” i.e., the dissemination of the photography beyond the intended recipient, “and the adult to teenager child pornography aspect.” Sept. Tr. at 182:22-23 (Strasburger). See id. at 182:2-10 (Strasburger).

         79. Consequences of aggravated sexting include: “clinical levels of anxiety, ” Sept. Tr. at 94:24 (Kenney-Noziska), which is different from typical anxiety because it “impact[s] the way somebody functions, ” Tr. at 95:4 (Kenney-Noziska); “clinical levels of depression, ” Sept. Tr. at 95:6 (Kenney-Noziska); impact on self-perception and self-identity, see Sept. Tr. at 95:7-9 (Kenney-Noziska); low self-esteem, shame, or guilt, see Sept. Tr. at 95:10-11 (Kenney-Noziska); cutting, see Sept. Tr. at 95:13 (Kenney-Noziska); eating disorders, see Sept. Tr. at 95:13 (Kenney-Noziska); substance abuse or addiction, see Sept. Tr. at 95:714-15 (Kenney-Noziska); isolation, see Sept. Tr. at 95:18 (Kenney-Noziska); entering “risky or unsafe or dangerous relationships, ” see Sept. Tr. at 95:20-21 (Kenney-Noziska); cyber bullying or even suicide, see Sept. Tr. at 95:25-96:1 (Mease, Kenney-Noziska), or attempted suicide, see Sept. Tr. at 187:19 (Strasburger).

         80. An online survey of 655 teenagers between the ages of thirteen and eighteen found that nine in ten teenagers who “sent sexually suggestive text messages or emails with nude or nearly-nude photos of themselves” reported no negative consequences, Cox Commc'ns et al., Teen Online & Wireless Safety Survey: Cyberbullying, Sexting, and Parental Controls, Cox 5 (May 2009), https://www.cox.com/wcm/en/aboutus/datasheet/takecharge/2009-teen-survey.pdf (“2009 Cox Survey”); see id. at 4, 38, but found that three in ten friends of teenagers who sent texts reported that the photograph was “forwarded to someone other than the intended recipient, ” Dena T. Sacco et al., Sexting: Youth Practices and Legal Implications 6 (Berkman Ctr. for Internet & Soc'y at Harvard Univ., Publ'n No. 2010-8, 2010), https://papers.ssrn.com/sol3/papers.cfm? abstract_id=1661343, filed December 1, 2017 (Doc. 77-1)(“Youth Practices”)(citing 2009 Cox Survey at 38).

         81. The 2015 Pennsylvania Survey noted that “[t]he relationship between consensual sexting and sexual activity has been well examined, ” evincing “that youth who sext are more likely to be sexually active than their nonsexting peers, ” although “[t]he relationship sexting and risky sexual behavior is less clear[.]” 2015 Pennsylvania Survey at 191.

         82. The 2015 Pennsylvania Survey's results underscored the correlation between sexting and other sexual activity, but also found that “consensual sexting is highly related to alcohol and tobacco use, being a male student, being cyberbullied, and reporting both depressive symptoms and previous suicide attempts, ” although it could not determine causality. 2015 Pennsylvania Survey at 195.

         83. At this time, it is premature to conclude that experimental, consensual sexting is causing those teenagers who consensually sext to engage in other risky behaviors -- such as alcohol and drug use, teenage pregnancy, and attempting suicide. See Sept. Tr. at 116:3-117:15 (Zimmerman, Kenney-Noziska); id. at 183:12-23 (Strasburger); 2015 Pennsylvania Survey at 195 (showing that, while consensual sexting is related to risk behaviors, causality is unknown).

         84. Those adolescents who had experienced aggravated, nonconsensual sexting reported depression, attempted suicide, and self-harm behaviors in larger percentages than those who had engaged in experimental sexting. See 2015 Pennsylvania Survey at 195 tbl. 2. Cf. Sex Pics at 5 (finding that more depressive symptoms at the baseline time period meant an increased likelihood of sending a sext within the next year).

         85. Studies show that the rates of teenage pregnancy and alcohol and drug use among teenagers are decreasing. See Sept. Tr. at 116:21-25 (Zimmerman, Kenney-Noziska).

         86. While there are certainly differences in degree in the harm that consensual, experimental sexting and aggravated, nonconsensual sexting cause, there is no bright line between self-produced, experimental sexting and that which results from coercion or abuse. Some teenagers who engage in normative, experimental sexting come to regret that behavior later, and may suffer anxiety or other harm as a result. See Sept. Tr. at 132:1-5 (Mease, Kenney-Noziska). Kenney-Noziska attributes this to the fact that, once the sext is sent, it is no longer in the teenager's control, leaving the sender vulnerable to coercion. Sept. Tr at 133:2-21 (Mease, Kenney-Noziska). Between eight and twelve percent of sexts are forwarded without the sender's consent, regardless whether the initial sext was sent voluntarily in love and good fun, or as the result of abuse or coercion. See Sept. Tr. at 174:2-7 (Strasburger). Once leaked or posted to the internet, sexts are difficult to retrieve or erase regardless of the sexter's initial motivation, making the “sexual exploitation or . . . abuse . . . even harder to recover from.” Sept. Tr. at 97:13-21 (Kenney-Noziska).

         87. Nor are the teenage sexters themselves often aware of where the line is. Given teenagers' latent prefrontal cortex development, they are susceptible to being coerced or induced into producing sexts despite believing they are “engaging in perfectly normal behavior.” Sept. Tr. at 98:8-19 (Mease, Kenney-Noziska). Teenagers are prone to believe that they are engaging in consensual behavior, despite a romantic partner or internet acquaintance coercing them. See Sept. Tr. at 114:8-15 (Kenney-Noziska). Because of latent brain development, “[y]ounger teenagers don't appreciate the risks of sexting, ” even those who are “in a good relationship.” Sept. Tr. at 180:24-181:1 (Strasburger).

         88. Nonetheless, “[f]urther study is necessary to determine whether sexting ‘can be considered a risk behavior along with traditional adolescent risk behaviors like sexual behavior and substance abuse.'” Streett's Proposed Findings ¶ 13, at 8 (quoting 2015 Pennsylvania Survey at 197). See Sex Pics at 1 (“Due to the importance and possible consequences of sexting, more information about sexting predictors is crucial to effectively advance educational efforts.”).

         89. More research is needed to understand nonconsensual sexting, and to identify the variables and signs associated with it. See Meta-Analysis at 333.

         5. Prosecutions of Teenagers for Sexting and Their Consequences.

         90. The Court could find no cases prosecuting a minor for violating § 2251(a), and the parties have provided none. That the Court could not find a case where a minor was charged with violating § 2251(a) is not surprising, and thus not probative of § 2251(a)'s applicability to minors, given how federal courts generally treat juveniles. Under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031-5042 (“FJDA”), juvenile defendants are typically surrendered to state authorities. See 18 U.S.C. § 5032.

         91. Streett's avenue of attack is providing the Court material concerning state legislation and state prosecution[11] of teenage sexting, which is not relevant to the chilling effect of the federal statute, but demonstrates that, even in the face of state criminal prosecutions, the rate of teenage sexting is increasing. See United States' Proposed Findings ¶ 14, at 11.

         92. Streett also has not provided information regarding the frequency of adult prosecutions under § 2251, undermining the proposition that the prosecution of minors “would represent substantial overbreadth in relation to the legitimate sweep of the statute.” United States Proposed Findings ¶ 1, at 11-12.

         93. Dr. Strasburger adamantly opposes criminal prosecution of teenagers who engage in consensual sexting, because it involves “ruining a teenager's life before he or she has a chance to develop and live, ” Sept. Tr. at 176:25-177:2 (Strasburger), and there are other, less restrictive ways of dealing with consensual sexting such as counseling or other educational measures, see Sept. Tr. at 177:3-4 (Strasburger). See also Sept. Tr. at 124:20-125:17 (Zimmerman, Kenney-Noziska)(discussing how teenagers who take sexual photographs of themselves should not be labeled offenders, and that it is preferable for those who engage in consensual sexting to be educated rather than prosecuted).

         94. Dr. Strasburger notes that potentially millions of teenagers are sexting and with the embarrassment and cost involved in criminal prosecutions, it should not be left to law enforcement to decide whom to charge, because “the real danger is the cyber bullying aspect, and the adult to teenager child pornography aspect.” Sept. Tr. at 182:22-23 (Strasburger). See id. at 182:11-23 (Zimmerman, Strasburger).

         95. Dr. Strasburger says that “[t]here is nothing more embarrassing, if you're a teenager, than seeing your name in the paper in a way that you didn't want it there, ” Sept. Tr. at 185:11-13 (Strasburger), so he disagrees with legislation that only reduces penalties, as opposed to removing them, for teenage sexting -- which he labels as “innocent, flirtatious behavior, ” Sept. Tr. at 185:7-8 (Strasburger). See Sept. Tr. at 184:22-185:13 (Zimmerman, Strasburger).

         96. Kenney-Noziska believes that a prosecutor -- as opposed to a parent or a school --should examine each instance of sexting on a case-by-case basis to make the decision to prosecute, that there should be no blanket exceptions for certain types of sexts or relationships and that prosecution should not be automatic. See Sept. Tr. at 110:19-111:4 (Kenney-Noziska, Zimmerman); 128:4-13 (Zimmerman, Kenney-Noziska).

         97. Dr. Strasburger agreed that, when determining whether a sext constitutes child pornography, “it's a case by case content, and consent can vary, and both matter.” Sept. Tr. at 235:1-2 (Strasburger).

         98. It may be particularly confusing for a teenager who sends a sext of himself or herself and is later prosecuted for child pornography, because the teenager is both the offender and the victim in that situation. See Sept. Tr. at 183:3-9 (Strasburger).

         99. In searching Google, Dr. Strasburger has found more than a dozen state prosecutions of teenagers for sexting from 2017-2018, including those where a teenager who shared a self-produced image was both offender and victim. See Sept. Tr. at 145:17-23 (Strasburger).

         100. Criminal prosecutions of teenagers for sexting may result in their being put “in jail for up to 20 years” and being labeled as “juvenile sexual offenders for life, ” Sept. Tr. at 177:5-6 (Strasburger), with this label dictating where they may live and causing society to shun them, see Sept. Tr. at 177:8-10 (Strasburger), all because they “were engaging in what is a -- not a good, but an innocent activity, ” Sept. Tr. at 177:11-12 (Strasburger).

         101. Some states allow teenagers to “be taken into custody as a juvenile offender as soon as [they are] discovered to be sexting, ” Sept. Tr. at 187:1-3 (Strasburger), which makes reporting sexting “to the police . . . a tremendous issue for teenagers, ” Sept. Tr. at 187:6-7 (Strasburger), especially because such policies do not differentiate “between consensual sexting and sexting that has been disseminated, ” Sept. Tr. at 187:10-11 (Strasburger).

         102. Teenagers who are prosecuted for sexting are “no longer going to school” and “are shunned by their peers, ” meaning that they are “locked out of normal adolescence.” Sept. Tr. at 177:17-19 (Strasburger).

         103. The stigma that attaches to a teenager who goes to jail, receives other criminal penalties, or who is labeled as a sex offender because of sexting is serious, and still attaches even if the charges are eventually dismissed or result in only educational or diversionary programs. See Tr. ...


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