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On Nov. 8, state Sen. Kirk Watson (pictured), D-Austin, and Texas Attorney General Greg Abbott announced plans for a legislative initiative to help prevent “sexting” among teenagers — sending sexually explicit photographs electronically. Abbott says, “We’re seeing an explosion of sexting going on among teens.” But under current law, Abbott says, teens who engage in sexting are prosecuted for a felony offense, which some law enforcement officials are reluctant to do. Texas Penal Code §43.26 makes it a third-degree felony to possess a visual image of person younger than 18 engaging in sexual conduct and a second-degree felony to promote child pornography. Watson, a partner in Brown McCarroll in Austin, says that sending photos of minors, even photos of oneself, could lead to a child pornography charge. An individual convicted under §43.26 could face not only the possibility of prison time – up to 10 years for possession of a sexually explicit photo of a minor and up to 20 years for promotion of child pornography – but that individual also could have to register as a sex offender for life, Watson says. But Watson says that the Penal Code provision was meant to address adult abuse of minors. “We end up with ill-fitting penalties for minors,” he says. Watson says he and Abbott are working on legislation for consideration by the Texas Legislature in 2011 that recognizes sexting is harmful, wrong and illegal but, in the case of minors, would not be prosecuted as a felony; instead it would be a misdemeanor offense. But Watson says, “This legislation won’t in any way compromise the ability of law enforcement to prosecute persons who peddle child pornography. . . . This is geared at trying to help our kids.” Abbott says the proposed legislation would give courts some discretion and leeway to consider whether the sexting occurred because of a momentary lapse in judgment or because of something more serious. For teens who are first-time offenders, maybe probation would be appropriate, Abbott says. Watson says he is considering including affirmative defenses for minors. If a minor is in possession of a sexually explicit photo of another minor but reports to law enforcement authorities that he received the photo, that would be an affirmative defense, he says. Abbott says, “The goal here is not to arrest and prosecute a bunch of kids.” Abbott and Watson say the initiative will include an educational component to teach persons younger than 18 about how sexting can have a harmful impact on them and their future. Abbott says he envisions such a program in the public schools. “The educational component is the key,” he says. — Mary Alice Robbins

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