North Carolina teens are facing legal trouble over their naked selfies. Photograph: Alamy
A teenage boy in North Carolina has been prosecuted for having nude pictures of himself on his own mobile phone. The young man, who is now 17 but was 16 at the time the photos were discovered, had to strike a plea deal to avoid potentially going to jail and being registered as a sex offender.
Experts condemned the case as ludicrous. The boy was, however, punished by the courts, and had to agree to be subject to warrantless searches by law enforcement for a year, in addition to other penalties.
The young man was also named in the media and suffered a suspension as quarterback of his high school football team while the case was being resolved.
Cormega Copening, of Fayetteville, North Carolina, was prosecuted as an adult under federal child pornography felony laws, for sexually exploiting a minor. The minor was himself.
“It’s dysfunctional to be charged with possession of your own image,” said Justin Patchin, a professor of criminal justice at the University of Wisconsin and co-founder of the research website cyberbullying.org.
Copening was charged with four counts of making and possessing images of himself and one count of possessing a naked image of his 16-year-old girlfriend.
His girlfriend, Brianna Denson, took a plea deal after being prosecuted on similar charges for having naked, suggestive pictures of herself on her cellphone.
While the pictures were technically illegal, actual sex would not be – the age of consent for sexual intercourse in North Carolina is 16.
The pictures were discovered on Copening’s phone when authorities were investigating a wider problem of sexual images allegedly being shared at school without the permission of the subjects involved. Copening turned out not to be involved in that case.
He was prosecuted for having his own and his girlfriend’s image, despite them not having been shared further.
Copening and Denson’s court cases were ostensibly about “sexting” – the sending of sexually explicit material by text message – but the main charges related to them making and keeping their own images.
In most states, these crimes are technically on the books but are not typically used to prosecute similarly aged teenage lovers under 18 who have shared images only with each other consensually, Patchin said.
Patchin said he and other experts in the field had discussed this case and had heard of “zero examples” of under-18s being charged for having their own naked selfie in their phone.
“Kids should not be charged for that,” he said. “And you don’t want kids to be sending such pictures to their significant others, but I don’t think it should be a criminal offense where there is no victim.”
The legal bind came because the two were over 16 and so could be charged as adults in North Carolina, as is common with some felonies – but the crimes they were being charged with related to laws against sexually exploiting minors.
Each was therefore simultaneously the adult perpetrator who is considered a predator and the minor victim who needs protecting by the law.
“It’s ludicrous,” said Fred Lane, a computer security and privacy expert and author of the book Cybertraps for Educators, based in New York. “It’s crazy. It’s an overreach.
“This goes back to the supreme court making child pornography unconstitutional in 1983 and each state legislating in line with that for the public good – in order to protect children from adults producing, possessing or distributing nude images of them.
“But that was before anyone thought kids would be making and sending nude photos of themselves with publicly available digital technology.”
The federal child abuse image felony laws apply to every state. But 20 states have enacted legislation, often nicknamed Romeo and Juliet laws, to avoid prosecuting teenagers who exchange naked pictures with each other as a couple where there is no exploitation.
Even so, in many states it is still a misdemeanor offence; in others it is a so-called informal offense, where the teens are obliged to submit to “diversion” education about making responsible choices.
In the other 30 states there is no “sexting” rule to mitigate the child abuse image laws as they apply to teenage lovers consensually exchanging images purely within their relationship, or possessing nude selfies individually. In Fayetteville, the authorities decided to lay down the law.
“There are about 10 or 12 mostly conservative states where they will prosecute kids for this,” said Lane, “and it’s a kind of moral values thing – they are trying to make an example of them because it’s believed to be inappropriate behaviour.
“There is a streak of moralizing that runs through this country that is disturbing sometimes.”
In July, Denson took a plea deal and admitted a misdemeanour. Felony charges were dropped. She was put on probation for a year, technically for exploiting herself by making and having a naked image of herself.
She was ordered to pay $200 in court costs, stay in school, refrain from using illegal drugs and alcohol, take a class in making good decisions and do 30 hours of community services. She will not be allowed to have a cellphone for a year.
In September, Copening took a similar plea deal. If both comply with the terms of their deals, then their records will be wiped after a year.
Jeff Temple, a psychology expert at the University of Texas Medical Branch, has conducted research suggesting that 30% of teens “sext” each other. He called for “common sense” from the authorities.
Temple said that if states used their laws literally, “tens of thousands of kids would be in jail and registered as sex offenders”.