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Teen Sexting: legislative comparison between Italy and the United States

Scritto da Jessica Puleo

In the era of technology and globalization, connection and communication between people has become much easier on many different levels, and teenagers appear to be main users of the Internet tools for connecting and exchanging information with

It is thanks to the widespread of several digital technologies that “keeping in touch” with others has become much easier for everyone, especially for younger people, such as teens, which have a great knowledge and understanding of social networks and communication applications on phone and computer devices.

Indeed, because of the great development of cellphones, they have become an indispensable everyday object, which allows everyone to be connected with the rest of the world, in the beginning this was achieved just by simple being able to make a phone call or sending a text message, today with the possibility to exchange pictures and videos as well.

This has led to the spread of a new phenomenon named “sexting” which consists in the exchange of sexually allusive pictures which most of time are pornographic pictures and selfies, through mobile phone devices.

The major concern arising in most countries is the tendency to sext, which teenagers, therefore minors, have shown. Indeed according to a study from Drexel University, in Philadelphia, based on an online survey of undergraduates from the surrounding area, more than 50% of them have declared of having exchanged sexually explicit messages or pictures, while they were still minors not considering the fact under any illegal behaviour.

Also, according to Elisabeth Englander, professor of psychology at Bridgewater State University, “this is not a rare behavior [...] It appears to be widespread. It's engaged in by many kids who are functioning well and not having problems and it's not very unusual or rare."

Although considered as a common behavior by most people, parents have expressed concerns about which type of behaviors and attitudes teens have online, the people with whom they interact and the personal information they make available. Such concerns are not to be limited to parents: lawmakers and advocates have spoken, relating to this matter, about issues such as online safety, cyberbullying and privacy issues affecting teens.

Although the phenomenon has spread all over the world, a common and unified legal mechanism is yet missing to this day. Until recently, most states were lacking legal coverage on the issue, therefore were trying to fit this new teenage trend under an already existing legal framework, such as child pornography and child exploitation for which severe and harsh punishments are enforced.

In the United States the tendency is towards a widespread adoption of laws against teen sexting. Not all of the 50 states have adopted a legal framework yet, most of them are still working on passing bills relating the aspect, and some others are simply targeting the phenomenon with preexisting laws against child pornography.

As we can see, there is a lack of a federal law concerning the matter, therefore the legal measures adopted by each state may differ strongly from one another. For instance, looking at the framework adopted in Louisiana, which prohibits the exchange of pornographic pictures of minors under the age of 17, it makes no distinction between the senders and the recipients, while in Texas, sexting between two minors is permitted by law as long as one of them is up to two years older than the other.

Although in the United States law sanctions may differ from state to state, most of them consider teen sexting as a legal offence and therefore punish the use and spread of minor pornographic pictures in most cases.

In Italy the situation differs greatly since, not only there is no legal framework under which the matter falls, but also because retaining and sending such pictures is not considered punishable under Italian law according a recent decision of the Corte di Cassazione (Corte Cass. Sent. N. 11675 del 21 marzo 2016). Indeed, a case was presented in front of the Court regarding a teenage girl which had, by her own initiative, sent pornographic pictures of herself to a group of minors, which have then sent the same pictures to other friends, therefore propagating the pictures among new people of which the girl into account did not know about.

The court of first instance’s decision was of non-proceeding against the group of teenagers since the girl, whose pictures were sent around, had taken these pictures voluntarily and under no constriction.

The Public Prosecutor appealed to the Court’s decision, since it based the case on the fact that the matter related on pornographic pictures of a minor, independently of the way these pictures were taken in the first place, if by others or by the victim itself, but the Supreme Court did not agree with the accusation since it stated that art. 600-ter of the Italian penal code does not take into account all types of pornographic pictures of minors, but only the ones taken for child exploitation and that the spread and divulgation of such pictures is punishable only in the case that someone, who is not the minor, took the pictures.

The Corte di Cassazione, on the matter has stressed that the difference between the actor and the minor is relevant according to the law, since the minor in order to be considered the victim of the crime, must not be conscious nor willing to take the pornographic pictures, while in this case, the girl into account had taken the pictures by her own will, with the specific intention of sending them to the group of minors above mentioned.