More than 100 years ago, Richard von Krafft-Ebing ( 1886/1965 , p. 241) made the following observation about sexual behavior:
· Nothing is so prone to contaminate—under certain circumstances, even to exhaust—the source of all noble and ideal sentiments, which arise from a normally developed sexual instinct, as the practice of masturbation in one’s early years. It despoils the unfolding bud of perfume and beauty, and leaves behind only the coarse, animal desire for sexual satisfaction. If an individual, thus depraved, reaches the age of maturity, there is lacking in him that aesthetic, ideal, pure and free impulse that draws the opposite sexes together. The glow of sensual sensibility wanes, and attraction toward the opposite sex is weakened. This defect in the morals, character, fantasy and instinct of the youthful masturbator, male or female, in an unfavorable manner, even causing, under certain circumstances, desire for the opposite sex to become entirely absent; thus masturbation becomes preferable to the natural mode of sexual satisfaction.
At that time, masturbation, homosexuality, and other sexual practices regarded as common today were not only condemned, but were also considered pathological and loathsome. Attitudes toward sexual behavior are structured through social and political ideologies, and they have changed drastically throughout the centuries. Some harmful sexual acts are—and should continue to be—illegal in nearly every community. One such example is rape, which constitutes a violation of the person and can cause irreparable harm both physically and psychologically. In describing rape, the Policy Advisory Committee on Sexual Offences in England stated that
· rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim.… Rape is also unpleasant because it involves such intimate proximity between the offender and the victim. ( Criminal Law Revision Committee, 1984 )
The legally and socially accepted boundaries of other sexual behaviors, however, are not as clear, and sexual violence is not unique to any one culture or historical period ( Stermac, Segal, & Gillis, 1990 ). Sexual behaviors other than those for the purposes of procreation (for example, homosexuality, incest, adultery, masturbation, bestiality, and sexual activity with children) have vacillated among social acceptance, stigmatization, and illegality.
Sexual offenses vary across time and cultures, and even across various jurisdictions in the United States. The types of sexual acts that may be criminalized can be broadly categorized in four ways, though these are not necessarily mutually exclusive:
· 1. Sexual acts with contact . Most sexual offenses are within this category, where there is touching of the intimate part(s) of the body or penetration either without the consent of the victim or when one person is incapable of consenting under the law (for example, a person who has not yet reached the age of consent, a person who is not conscious, or a person who is dead). This category involves all contact acts, from touching over the clothes to forced sexual intercourse.
· 2. Noncontact sexual behavior . This involves acts that are for the purpose of sexual gratification, but no contact is made between the perpetrator and the victim (for example, exposure of the genitals, voyeurism (peeping), and telling children to perform sexual acts).
· 3. Viewing, possessing, or producing child pornography . This third category includes any act involving the viewing or producing of any visual material of a child that is for the purpose of sexually gratifying an adult. This may include sexual contact with children or the sexual exploitation of children in photos and films. Recent examples include “sexting,” or texting sexual pictures of oneself to another person (discussed further in Chapter 7 ).
· 4. Sexual solicitation or trafficking . Acts included in this category are based upon sexual services exchanged for financial or other types of compensation. Sexual solicitation may involve prostitution in a traditional sense (solicitation of sexual services through face-to-face meetings). Alternatively, adults may seek sexual relationships with adolescents, usually online, which may or may not result in a face-to-face meeting. Trafficked victims may be adults or minors, domestic or international, and are generally lured into performing sexual services for promises of money and/or a better life.
There are some offenses common across all jurisdictions in the United States, though the terminology differs depending on the jurisdiction. For example, although most states use the term rape to define offenses involving nonconsensual oral, anal, and/or vaginal penetration, this is called sexual imposition or gross sexual imposition in North Dakota and is called sexual assault in Colorado. Additionally, the specific definitions of this crime differ in terms of who can be a victim or an offender (male and/or female), the class of felony or misdemeanor, and the age of the victim (some define the different degrees by age ranges, with acts committed against younger victims being more serious offenses).
Many states also label some consensual sexual acts as offenses. Thirteen states listed consensual sodomy as a criminal act as recently as 2003, when sodomy laws were invalidated and declared unconstitutional by the Supreme Court ( Lawrence v. Texas, 2003 ). Other consensual acts that continue to be illegal in some states include incest (intergenerational and between siblings), adultery, bigamy, female genital mutilation, fornication, masturbation for hire, indecent dancing, prostitution, and public indecency ( Leiter, 1999 ). In addition to these offenses, other crimes that are not necessarily sexual in nature are registerable offenses, such as kidnapping.
For most sexual offenses, there must be a lack of consent on the part of the victim and some level of intent on the part of the offender. The laws in most states stipulate that consent is lacking from a sexual act when:
· ▪ The act is the result of force, threat, or duress;
· ▪ A reasonable person would understand that the victim did not consent due to a clear or implied statement that he or she would not want to engage in the sexual act; or
· ▪ The victim is incapable of consenting because he or she is below the age of consent (this ranges from age 16 to age 18 in various states), is mentally disabled, is mentally incapacitated, is physically helpless, is under the custody of correctional services, or is placed within the care of children and family services (or any other organization in charge of monitoring and caring for those in care of the state).
Offenses vary by type, degree of severity, class of offense, and length of sanction. In some states, these are defined simply by class of felony or misdemeanor. In other states, they are divided into first, second, and third degree offenses, with first degree offenses being the most severe. For example, Table 1.1 shows how New York classifies rape into three degrees. The sanctions associated with the degree of the offense increase as the severity of the offense increases.
TABLE 1.1 New York Penal Code Definition of Rape
|§130.25||Rape||Third||He or she engages in sexual intercourse with another person, to whom the actor is not married, who is incapable of consent and is not less than 17 years old; actor is over 21 years old and engages in sexual intercourse with someone less than 17 years old. Class E Felony.|
|§130.30||Second||Actor is over 18 years of age and he or she engages in sexual intercourse with someone less than 14 years of age; victim is otherwise mentally disabled or mentally incapacitated. Class D Felony.|
|§130.35||First||He or she engages in sexual intercourse with a person by forcible compulsion; who is incapable of consent because he or she is physically helpless; who is less than 11 years of age; who is less than 13 years old and the actor is over 18. Class B Felony.|
|SOURCE: New York Penal Law (2000)|
SEXTING: The Emergence of New Sexual “Offenses” in the 21st Century
Accepted sexual behaviors change over time and by place, and are regulated by social and cultural norms. Over the last few decades, there has been an emergence of new behaviors, often related to developing technology, that are being considered sexual offenses. One such phenomenon is “sexting,” in which people text nude or semi-nude photos of themselves to others. Though this has become a widespread practice generally, it is particularly common among adolescents. A survey of 1300 teens conducted by the National Campaign to Prevent Teen & Unplanned Pregnancy and CosmoGirl.com found that one in five teens had sexted, even though the majority knew it was a crime.
Several sexting cases have made media headlines, since sexting can have serious legal consequences for those who partake in this activity. One such example was of Phillip Albert, a teenager in Orlando, Florida. After an argument with his 16-year-old girlfriend, Phillip, then 18, sent a picture of his naked girlfriend that she had texted him to her family and friends. Phillip was charged with sending child pornography, convicted, and sentenced to five years of probation. Additionally, he is required to register as a sex offender until age 43. Phillip’s attorney is appealing the conviction, noting that “sexting is treated as child pornography in almost every state and it catches teens completely off-guard because this is a fairly natural and normal thing for them to do. It is surprising to us as parents, but for teens it’s part of their culture” ( Feyerick & Steffen, 2009 ).
Another high-profile sexting case occurred in Pennsylvania. Marissa Miller was 12 years old when she and a friend took pictures of themselves wearing training bras while at a slumber party. The picture soon surfaced on another classmate’s cell phone. The district attorney for the county told Miller and her friend that they could take probation and re-education classes or be charged with sexual abuse of a minor. Miller’s mother, along with another family, refused to take the deal; instead, they contacted the ACLU (American Civil Liberties Union) and with its help is suing the district attorney to stop him from filing charges.
Phillip Albert’s attorney noted that “Some judges have the good sense and reasonableness to treat this as a social problem and others are more zealous in their efforts to put everybody away and I think it’s time as a society that we step back a little bit and avoid this temptation to lock up our children” ( Feyerick & Steffen, 2009 ).
· 1. What should be the consequences for teens who “sext”?
· 2. What are the potential harms that can result from “sexting”?
· 3. Explain the similarities and differences between sexting and transmitting or possessing child pornography.