In 2011, Florida lawmakers made sure young people who sent racy pictures to each other via cellphone wouldn’t be labeled sex offenders.
But they may have inadvertently made sexting a crime that can’t be punished.
An appellate judge in West Palm Beach last month pointed out that the 2011 law makes sexting a noncriminal violation for first-time offenders — and that no court in Florida has jurisdiction over civil offenses for minors.
Sen. Joseph Abruzzo, a Wellington Democrat who carried the sexting bill in 2011, said he plans to propose a fix.
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“It’s important to get the law on the books correctly,” Abruzzo said Tuesday.
Before 2011, young people who sent sexually explicit photos or videos to each other could be punished as child-pornography distributors.
The penalties could be steep. In one Orlando-area case, an 18 year old who emailed a nude photo of his 16-year-old girlfriend to her friends after an argument was sentenced to five years of probation and forced to register as a sex offender.
Former state Sen. Dave Aronberg, D-Greenacres, tried to ease the penalties for teenage sexting in 2010. His bill passed the Senate, but fell short in the Florida House.
One year later, the Legislature voted unanimously to decriminalize sexting for first-time offenders who are minors.
The 2011 law ushered in new penalties for a first offense: eight hours of community service, a $60 fine or participation in a “suitable training or instruction” program.
The statute is clear: A first violation is “noncriminal.”
“We wanted to make sure that children’s lives weren’t being ruined over youthful indiscretions,” Abruzzo said.
Second- and third-time offenders, however, would face misdemeanor and felony charges, respectively.
The law was tested in court in 2013, when a teenage girl sent a text-message photograph of her vagina to a 13-year-old classmate.
She sent the photo “because she was bored,” according to court papers.
But rather than order a punishment suitable for a first-time offense, a Broward County circuit judge dismissed the case, saying no delinquent act or violation of law had taken place.
A panel of appellate judges upheld the ruling in January.
The rulings led to large problems with the law. If teenagers cannot be punished for a first violation, they cannot be punished for a second or third violation, either.
Abruzzo has been working with Aronberg, who is now the Palm Beach County State Attorney, on a solution.
They are proposing a fix to the enforcement issue, as well as a requirement that 80 percent of the money collected in fines to be spent on cyber safety programs for children and teens.
The bill, which is still being finalized, does not yet have a sponsor in the House. But House Criminal Justice Subcommittee Chairman Carlos Trujillo, R-Miami, said he supports fixing the law.
Abruzzo considers the move a high priority.
“At the end of the day, I don’t want minors to have to register as sex offenders and alter their lives for the worse,” he said. “That’s the goal.”
Contact Kathleen McGrory at kmcgrory@MiamiHerald.com.