Sex, Sexting and Digital Discretion

What would the founders think of sexting?
illustration by victoria marcelino

Consent, long the green light for sexual advances, may be changing to a “proceed with caution” yellow.   Whether it be sexting or sex, “yes” does not always make it legal, especially when complicated by authority and coercion.  

The whole concept of consent is changing, says Amanda Grady Sexton, the director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence. Ignoring a “no” is rape, she says. Only an affirmative “yes” means yes.

That much is clear, but what about two people of legal age engaged in consensual acts when one happens to have authority over and/or coerces the other? Are there certain professional relationships that must be severed before certain privileged acts can occur? And if explicit words (and images) are shared, are they protected by the First Amendment free speech clause?

Some insight to these questions may come from a pending New Hampshire court case involving a 63-year-old teacher accused of sending obscene material to an accepting 16-year-old student. Todd Wiley, while serving as a Merrimack High School teacher, said the material he sent was part of a series of short sexualized stories involving a student. His defense is clear and bold. Wiley’s attorney, Anthony Sculimbrene of Nashua, said the communication was perfectly legal and protected by the First Amendment. “Both parties willingly participated in these conversations and in fantasy creation,” wrote Sculimbrene in court documents. “There is no element of coercion or threat to any of the conversations.”

He further argues that a 63-year-old man and a 16 year old can legally marry in New Hampshire and engage in non-coercive, consensual sex, so “how can descriptions of non-coercive, consensual sex be criminal? [It] … cannot be obscene if the act itself is completely legal.”

Nathan Fennessy, a Concord lawyer and school board member, says that Wiley’s behavior is inappropriate and covered by his district’s harassment and internet-use policies. “Teachers shouldn’t look for dates in their classroom,” he says, but he adds what may get you fired doesn’t always land you jail. “There is a difference between criminal law and workplace policies.”

Schools were exempt from constitutionally protected freedom of speech until 1969, when the US Supreme Court established a reasonable limit on free speech so schools could maintain a safe, effective learning environment for young people in their care. The Tinker vs. Des Moines case involved several students who were suspended for wearing black armbands to protest the Vietnam War. The court acknowledged the unique mission of protecting minors and allowed the limiting of free speech to meet the broader public interest, but it affirmed that “students or teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

“Free speech is not absolute,” says Gilles Bissonnette, an attorney with the NH ACLU. The court will balance free expression “with the strong governmental interest in protecting minors, even those who are above the age of consent who might not easily refuse a relationship with an adult teacher. Protecting minors in these situations is important because they are vulnerable to exploitation and coercion from those who are in a position of trust.”

He noted that the state Supreme Court upheld a law that criminalized consensual sexual relations between therapist and client, and the reasoning, according to Bissonnette, was that the state has an “interest in protecting those who were vulnerable to exploitation and in maintaining the integrity of the mental health profession.”

A similar case is currently being appealed to the state Supreme Court where a deputy county sheriff was convicted of sexually assaulting a female inmate he was transporting. A lower court determined that consent couldn’t be granted to someone who has a “position of authority over the victim and uses this authority to coerce the victim to submit.”

The defendant’s attorney argues that his client did not have direct supervisory authority over the female inmate. Assistant Attorney General Elizabeth Woodcock disagrees. A Concord Monitor story citing Woodcock stated, “It was hard to imagine someone who would have had more control over the inmate than Blanchette when the two were alone in a vehicle and one was shackled.”

Of course, sexting and sex are very different crimes governed by different statutes.

Fennessy provides a note of caution. “There is a difference between criminal law and workplace policies,” he says. A review of other criminal sexting convictions between adults and children finds that child endangerment is a charge that sticks because it requires a lower threshold of evidence.

States have had a notoriously tough time narrowing the focus of their laws governing sexting and other technology-based sexual advances. Most notably, a case was dropped against a North Texas teacher who admitted to sending illicit images to a student because the law was too vague, while some peer-to-peer school sexting cases have tripped child pornography laws. Proving coercion seems easier in the case of certain professions that have authority over vulnerable people.

Grady Sexton, of the Coalition Against Domestic and Sexual Violence, admits that there is “a lot of gray area,” but not in the Wiley case. The free speech defense, she says, “has no traction.” But she does hope that it will result in more caution and understanding of the limits of consent both for vulnerable people and those have authority over them.