'Sexting panic': Why the law struggles to keep up with reality

She was a young, impressionable woman and he was a married man; cutting-edge technology allowed their illicit relationship to thrive.

Maggie McCutcheon and Frank Frisbie never got around to sexting. It was 1886 after all, and even the telegraph had its limits.

But they drew headlines that still sound fresh today: "The Dangers of Wired Love."

It's an example Amy Hasinoff cites as she talks about her new book, Sexting Panic, and the reasons parents might want to take a deep breath and gather some perspective before talking to their teens about sexting.

"This is a moral panic that endlessly repeats itself and will continue to repeat itself once we have whatever the next communication technology is," she says.

"I don't know if that's going to be holograms or whatever it is: I can't predict. But we will be panicking about girls using it for sex, there's no doubt."

Consensual vs criminal

While parents, pundits and police debate the dangers of sexting, Hasinoff argues the surrounding anxiety distracts from crucial questions about teenage understanding of privacy and consent.

The University of Colorado communications professor says part of the problem lies with confusing the consensual sharing of intimate images with the non-consensual, malicious distribution of private pictures.

One is sexting, the other is a criminal offence. But we tend to treat them the same.

"By just saying sexting is wrong, it's illegal, we're missing out on the opportunity to tell them about the importance of respecting privacy in digital media communication," Hasinoff says.

"Instead we need to have a real conversation with young people about 'What are the norms and expectations about privacy?'"

'Nothing to do with child pornography'

The legal ramifications of sexting in Canada are different in the United States, where teens have been charged for sending consensual images to each other.

In 2001, the Supreme Court of Canada established a "personal use" exemption to child pornography laws that allows two youths to consensually record their own sexual activity as long as it stays between them.

It's when the material gets shared that law enforcement comes into play. That's what happened in a Victoria, B.C., case that emerged from a tangled teenage love triangle.

Call them Girl A, Girl B and the boyfriend. He found out Girl B had shared a naked picture of him and told Girl A he still had naked pictures of Girl B. Girl A accessed the intimate selfies, which she shared with a friend.

Girl A, a 16-year-old, was then charged with possession and distribution of child pornography. 

It's not the love life any parent wants for their child, but like most situations involving teens and sex, it's reality.

Girl A, who is now 18, got a six-month conditional discharge; her lawyer, Christopher Mackie, says she's no child pornographer.

"Our main issue with all of it from the outset is the tremendous impact that has not only on my client but any person in her circumstances charged with those kinds of offences," Mackie says.

"The substantive acts have nothing to do with child pornography."

Girl A is appealing the conviction on constitutional grounds; she argues the charge is disproportionate to the offence.

"The prosecution of me and other teenaged sexters as child pornographers is inconsistent with the principle of fundamental justice," Girl A wrote in a legal challenge.

"But tough luck, government might say: if your actions and those of other teenaged sexters possess the elements of these child-porn offences, then you and your peers are guilty of those offences – plain and simple."

Victim blaming

Cyberbullying laws introduced this year addressed illegal sexting by creating a new offence of distributing an intimate image of a person without that person's consent.

But Mackie fears authorities will still "overcharge": using the threat of child pornography charges to convince teens to plead guilty to the lesser offence.

"It would seem to make much more sense before you get the heavy hammer of the state involved to try to resolve it with parties with the assistance of the schools," he says.

"Because that's usually how it comes to the attention of the authorities — via the schools."

Lara Karaian, an associate professor at Carleton University in Ottawa, studies Canada's legal and societal approach to sexting and teens. She says young female victims shouldn't be made to feel ashamed because someone else shares their image.

"It's that tack that 'If you had never created the image in the first place then you wouldn't be going through all of this stuff,'' she says.

"It's very victim blaming, and very abstinence based, and we all know abstinence based education doesn't work with teenagers."

'Networked privacy'

Karaian says her interviews with teens indicate a different understanding of privacy to their parents — one that's been referred to as "networked privacy."

"They will share passwords with each other. They have access to each others phones. They have access to each other's email accounts and their Facebook accounts," she says.

Where adults cling to the tools of privacy, Karaian says teens "share them a lot more readily. That can be a strength. And that can also be a weakness."

It may be cold comfort for parents confronting technology addicted teens. But if history has proved anything, it's that there will be something new to worry about tomorrow.