United States District Court, D. New Mexico
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
MEMORANDUM OPINION 
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.
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
The Experts' Backgrounds.
United States' expert witness, Sueann G. Kenney-Noziska,
is a licensed clinical social worker and registered play
therapist supervisor. See Transcript of
Motion Proceedings at 65:13-17 (Kenney-Noziska)(taken
September 10, 2018), filed September 28, 2018 (Doc.
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
2016, at the National Center for Missing and Exploited
Children's (“NCMEC”)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
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's areas of specialization are:
“Clinical treatment for children and teens”;
“outpatient”; “child abuse and neglect or
child maltreatment, ” which includes “sexual
abuse, sexual trauma, and sexual exploitation.” Sept.
Tr. at 72:8-16 (Kenney-Noziska, Mease).
Kenney-Noziska's training also “encompass[es]
childhood development and adolescent development.”
Sept. Tr. at 73:5-6 (Kenney-Noziska).
Kenney-Noziska has presented trainings in which “child
and adolescent development is interwoven.” Sept. Tr. at
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).
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).
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).
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).
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
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
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
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
Since 2010, “[v]irtually every lecture [Dr. Strasburger
has] given . . . has included sexting.” Sept. Tr. at
Definition of “Sexting.”
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
“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.
term “sexting, ” “is most commonly used to
describe the creation and transmission of sexual images by
minors.” True Prevalence at 3.
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.
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).
“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.”).
Experimental sexting does not involve “malice or misuse
or other criminal use of the image.” Sept. Tr. at
Experimental sexting is produced by teenagers, for teenagers.
See Sept. Tr. at 108:19-23 (Kenney-Noziska).
Experimental sexting could include images of genitalia or
breasts. See Sept. Tr. at 130:9-12 (Zimmerman,
“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
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
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).
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
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).
“[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.
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
The Prevalence of Teenage Sexting.
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).
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.
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,
“[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).
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
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).
“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.
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.
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
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”).
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.
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).
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).
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).
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.
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.
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.
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.
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.
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.
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. See Prevalence and
Characteristics at 4; United States' Proposed
Findings ¶ 10(a), at 7.
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.
Prevalence and Characteristics shows that
0.13% of adolescents creating or appearing in
such images and 1.06% 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.
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.
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
“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
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
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.
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.
“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.
The Inherent Harm in Teenage Sexting.
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
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”).
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).
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”).
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).
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
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”).
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).
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 . . . .”).
“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).
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.”).
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).
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
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).
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
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).
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),
(“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),
filed December 1, 2017 (Doc. 77-1)(“Youth
Practices”)(citing 2009 Cox Survey at
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.
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
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
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).
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).
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
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).
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.”).
More research is needed to understand nonconsensual sexting,
and to identify the variables and signs associated with it.
See Meta-Analysis at 333.
Prosecutions of Teenagers for Sexting and Their
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.
Streett's avenue of attack is providing the Court
material concerning state legislation and state
prosecution 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,
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.
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
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
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).
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,
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).
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
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
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
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
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).
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.