Sexting: "Most people don't think it's that big of a deal anymore"

The New York Times ran a thoughtful and extensive series of articles on sexting during the weekend. According to one of the stories, sexting is now mostly a middle school phenomenon. By the time they reach high school, most teens are more interested in dirty text messages. With that thought in mind, here are some highlights:

But adults face a hard truth. For teenagers, who have ready access to technology and are growing up in a culture that celebrates body flaunting, sexting is laughably easy, unremarkable and even compelling: the primary reason teenagers sext is to look cool and sexy to someone they find attractive.

Indeed, the photos can confer cachet.

“Having a naked picture of your significant other on your cellphone is an advertisement that you’re sexually active to a degree that gives you status,” said Rick Peters, a senior deputy prosecuting attorney for Thurston County, which includes Lacey. “It’s an electronic hickey.”

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The school was buzzing. “When I opened my phone I was scared,” recalled an eighth grader. “I knew who the girl in the picture was. It’s hard to unsee something.”

Meanwhile, another middle school principal had begun investigating a sexting complaint that morning. Ms. Rae realized that Margarite’s photo had gone viral.

Students were summoned to Ms. Rae’s office and questioned by the police. Their cellphones were confiscated.

When Jennifer, who works for an accountant, arrived at the school, she ran to Isaiah, a tall, slender boy with the startled air of an unfolding foal. He was weeping.

“I was in shock that I was in trouble,” he recalled during a recent interview. “I didn’t go out of my way to forward it, but I felt responsible. It was bad. Really bad.”

He told the police that the other girl had pressured him into sending her Margarite’s photo, vowing she just wanted to look at it. He said he had not known that their friendship had disintegrated.

How had the sexting from Margarite begun? “We were about to date, and you’ll be like, ‘Oh, blah blah, I really like you, can you send me a picture?’ ” Isaiah recalled.

“I don’t remember if I asked her first or if she asked me. Well, I think I did send her a picture. Yeah, I’m pretty sure. Mine was, like, no shirt on.

“It is very common,” he said. “I’d seen pictures on other boys’ cellphones.”

After school had been let out that day in late January, the police read Isaiah his rights, cuffed his hands behind his back and led him and Margarite’s former friend out of the building. The eighth graders would have to spend the night in the county juvenile detention center.

The two of them and a 13-year-old girl who had helped forward the photo were arraigned before a judge the next day.

Officials took away Isaiah’s clothes and shoes. He changed into regulation white briefs and a blue jumpsuit. He was miserable and terrified.

When that sexually explicit image includes a participant — subject, photographer, distributor or recipient — who is under 18, child pornography laws may apply.

“I didn’t know it was against the law,” Isaiah said.

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Adults in positions of authority have been debating how to respond. Many school districts have banned sexting and now authorize principals to search cellphones. According to the National Conference of State Legislatures, at least 26 states have tried to pass some sort of sexting legislation since 2009.

“The majority of states are trying to put something in place to educate kids before and after the event,” said Justin T. Fitzsimmons, a senior attorney at the National District Attorneys Association who specializes in Internet crimes against children. “We have to protect kids from themselves sometimes. We’re on the cusp of teaching them how to manage their electronic reputations.”

But if the Lacey students were convicted of dissemination of child pornography, they could be sentenced to up to 36 weeks in a juvenile detention center. They would be registered as sex offenders. Because they were under 15, however, after two years they could petition a court to remove their names from the registry, if they could prove they no longer posed a threat to the public.

Read the complete story, A Girl’s Nude Photo, and Altered Lives, here.

Then read States Struggle with Minor's Sexting here.

Next check out Professor Susan Hanley Duncan's law review article entitled A Legal Response Is Necessary for Self-Produced Child Pornography: A Legislator’s Checklist for Drafting the Bill here

Finally, read the kid's views about sexting, What They’re Saying About Sexting, here ("There’s a law? I didn’t know that. How would you catch somebody when everyone does it?")

As always, if you have any time or energy left after reading all this stuff, post a comment here!

Fifth Circuit Issues Landmark Ruling for Child Victims

Late yesterday, the Fifth Circuit Court of Appeals in New Orleans adopted my longstanding position that there is no general proximate cause requirement governing restitution for victims of child pornography.

Since the New York Times wrote this story last year about our firm's effort to obtain restitution for a child pornography victim known as "Amy," hundreds of federal district courts across the country have denied restitution or issued de minimus restitution orders on her behalf.

The Fifth Circuit's unprecedented decision held that proximate cause is not a general requirement when deciding restitution and only applies to one open ended provision in the list of enumerated damages in the restitution law written by then-Senator Joe Biden as part of his landmark 1994 Violence Against Women Act (VAWA).

What makes this decision exceptional is that it was decided under a higher standard of review which is limited to mandamus - a rarely used procedural mechanism to bring an appeal. Mandamus requires that the lower court’s decision be “clearly and indisputably wrong” instead of standard “de novo” appellate review.

In December 2009, we sought both mandamus and standard appellate review of an adverse restitution decision issued in the Eastern District of Texas. The Fifth Circuit initially ruled 2-1 against our position, but consolidated and reconsidered our appeal last year.

Oral argument was held in early November with former federal judge Professor Paul Cassell skillfully presenting Amy's case.

In issuing its decision, the Court adopted our long-established argument that proximate cause does not apply to the entire restitution statute, just to one subsection of the statute.

This decision will make it much easier for victims of child pornography and exploitation to hold each and every criminal defendant liable in restitution for the “full amount” of their damages.

Writing for the three judge panel, Chief Judge Edith H. Jones conclusively held that even under heightened mandamus review, the district court’s decision to deny Amy restitution because the government failed to prove what losses, if any, were proximately caused by the defendants possession of two pornographic images, was “clearly and indisputably wrong.”

The structure and language of § 2259(b)(3) impose a proximate causation requirement only on miscellaneous “other losses” for which a victim seeks restitution. . . . Comparing the language of § 2259 with other restitution statutes affirms the conclusion that proximate causation applies only to the catchall category of harms.

The Court concluded that:

Restricting the “proximate result” language to the catchall category in which it appears does not open the door to limitless restitution. The statute itself includes a general causation requirement in its definition of a victim: “For purposes of this section, the term ‘victim’ means the individual harmed as a result of a commission of a crime under this chapter . . .” 18 U.S.C. § 2259(c). (emphasis added). . . . Given the statute’s built-in causation requirement and the volume of causation evidence in the context of child pornography, fears over excessive punishment are misplaced. . . . Incorporating a proximate causation requirement where none exists is a clear and indisputable error. Amy is entitled to receive restitution under the Crime Victim Rights Act.

We do not yet know if either the United States or the defendant will seek review by the full court or appeal the decision to the United States Supreme Court.

How To Screen Adoptive and Foster Parents

Screening potential adoptive and foster parents is an extremely difficult task, yet many social workers who screen applicants and supervise placements have no written guide to aid in their decision making or to measure competency of technique.

How To Screen Adoptive and Foster Parents: A Workbook for Professionals and Students serves as a comprehensive guide for social workers to draw on when making decisions for foster care/adoption placement. Based on case histories, research data, and interpretive analysis, this workbook teaches specific interview skills and analytical decision-making techniques necessary to competently evaluate each unique applicant family within a variety of constructs.

Comprising 12 concise and well-researched chapters, this guide is ideal for both classroom discussions and real-life applications. Topics include:

• What should you know before beginning a screening interview?


• What are the warning signs that an applicant may be a child predator?


• What are the steps to conducting a thorough home study?


• When is psychological consultation warranted?

Social workers and other professions dealing with the placement of children in foster and adoptive care have an enormous responsibility as their decisions and recommendations have lifelong consequences on both the children concerned as well as for the families in which the children are placed.

Although written in the context of the USA child care and protection system, the book has much to offer professional social workers working in other countries who are involved in assessing families for the placement and care of children.

Joan van Niekerk

Manager, Training and Advocacy, Childline South Africa

The Relationship Between Child Sex Abuse and Criminality

A recently published article looks at the relationship between child maltreatment and violent delinquency. In "Disentangling the Relationship Between Child Maltreatment and Violent Delinquency: Using a Nationally Representative Sample," researchers Ilhong Yun, Jeremy D. Ball, and Hyeyoung Lim used data from the National Longitudinal Study of Adolescents to examine the relationship between child maltreatment and violent delinquency.

The cases of 3,472 adolescents were analyzed for any relationship among child maltreatment and violent delinquency and for potential moderating effects of gender, socioeconomic status (SES), and religiosity.

The authors conclude that physical abuse was not associated with future violent delinquency, whereas sexual abuse and neglect predicted violent delinquency significantly. Gender, SES, and religiosity had no moderating effects on these relationships.

The article was published in the January 2011 issue of the Journal of Interpersonal Violence. An abstract and ordering information for the article can be found here.

Promoting Stable Families Through Postadoption Support

Postadoption support services are vitally important to sustain and strengthen adoptive families. Adoptees with histories of abuse, neglect, or lengthy institutionalization may confront significant challenges throughout their childhood. Without ongoing assistance and support for the children and their parents, many of these adoptions are at risk of disruption or dissolution. A new report issued by the Evan B. Donaldson Adoption Institute reviews existing postadoption programs and identifies directions for the development of effective models of postadoption practices.

The report, Keeping the Promise: The Critical Need for Post-Adoption Services to Enable Children and Families to Succeed, explores the range of challenges faced by adoptive families, assesses the extent to which current policy and practice meet their needs, and illustrates the risk and protective factors shaping positive, as well as more negative, adjustments. Several chapters also address evidence-based and promising practices in postadoption, as well as the different types of postadoption services models currently in use.

According to author Susan Livingston Smith, while adopted children are at a greater risk of experiencing emotional or behavioral problems, the majority of adopted youth are functioning within the normal range, and well over 90 percent of parents are satisfied with their adoptions. Nevertheless, many families are not able to access essential services while raising children with past histories of abuse, neglect, or institutionalization. With that in mind, the report offers some recommendations for improving postadoption support:

• Build a national task force to implement strategies and legislative initiatives geared towards the development of postadoption services


• Establish private and Federal funding to secure a reliable financial base for postadoption services


• Provide educational opportunities and adoption-competent counseling programs


• Develop a comprehensive continuum of adoption services at local, county, and State levels

School Lunches for Children in Foster Care

Signed into law by the President on December 13, 2010, the Healthy, Hunger-Free Kids Act of 2010 allows the U.S. Department of Agriculture (USDA), for the first time in over 30 years, the chance to make real reforms to the school lunch and breakfast programs by improving the critical nutrition and hunger safety net for millions of children.

The Healthy, Hunger-Free Kids Act of 2010 provides categorical eligibility to foster children for free meals served under the Richard B. Russell National School Lunch Act. A recent memo from the USDA's Director of Child Nutrition Division provides guidance to Regional Special Nutrition and State Child Nutrition Program Directors for implementing the new eligibility standards. It also encourages these program directors to reach out to State and local child welfare agencies to ensure timely and efficient implementation. Read the memo here.

If you would like to reach out directly to your State Child Nutrition Programs to collaborate on the implementation of the new law or to find out more information about implementation in your State, contact information can be found here.

Supporting Higher Education for Students from Foster Care

Casey Family Programs recently updated their Supporting Success framework, a tool to help higher education organizations develop and enhance services to improve outcomes for students from foster care. In addition to the stressors faced by most new students transitioning to a college environment, youth from foster care often have unique needs related to housing, food, transportation, health care, and financial aid.

The framework helps colleges improve their existing student support services and develop new programs to address these needs so students can focus on their academic success. The authors of the framework provide guidance on the six elements necessary for program development:

• Designated leadership


• Internal and external champions


• Collaborations with community agencies


• Data-driven decision-making


• Staff peer support and professional development


• Sustainability planning

In addition, the authors describe six elements for providing direct student support:

• Year-round housing and other basic needs


• Financial aid


• Academic advising and career counseling


• Personal guidance, counseling, and supplemental support


• Opportunities for student community engagement and leadership


• Planned transitions to college, between colleges, and from college to employment

The framework discusses each element in detail and presents concrete action steps to address each element. Throughout the framework, the authors utilize case examples of promising programs from community colleges and universities in California, Connecticut, Michigan, and Texas.

John Emerson and Lee Bassett were the principal authors of Supporting Success: Improving Higher Education Outcomes for Students From Foster Care: A Framework for Program Enhancement (version 2.0).

Download the full publication, a selected bibliography, and a program planning and improvement guide on the Casey Family Programs website.

Strengthening Representation of Parents in Child Welfare

The National Project to Improve Representation for Parents Involved in the Child Welfare System aims to strengthen representation of parents and provide them a voice in the child welfare process. The project website details the project's work in the area of training and technical assistance, assessments, and relevant articles, including standards of practice. To help attorneys who represent parents in child welfare cases, the project maintains a listserv, offers specialized training, and holds an annual conference.

The project is a collaboration between the American Bar Association Center on Children and the Law, Casey Family Programs, the Annie E. Casey Foundation, and the Steering Committee for the National Parents' Counsel Organization.

Visit this webpage to learn more.

Restoring Parental Rights After Termination

Every State has statutes providing for the termination of parental rights by a court. Once parental rights have been terminated, the child is legally free to be placed for adoption.

A new factsheet from the National Conference of State Legislatures (NCSL) provides an overview of laws in nine States that allow for the reinstatement of parental rights following termination of parental rights. If a permanent placement has not been achieved within a specific timeframe, a petition may be filed with the court requesting reinstatement of the parent’s rights. If the court determines that the parent is now able to provide a safe home for the child, the request may be granted.

The factsheet, Reinstatement of Parental Rights, includes States' information on when a petition for reinstatement may be filed, who may file a petition, and the specific findings required for a court to grant reinstatement of parental rights.

Related Item

Child Welfare Information Gateway offers Grounds for Involuntary Termination of Parental Rights, which includes State statutes on termination as well as reinstatement of parental rights.

The Missing Girls of China

This article by law professor David M. Smolin analyzes the causes and possible solutions to the sex ratio imbalance of China, as well as the causes of the diminishing numbers of intercountry adoptions from China.

Part I provides statistical, historical, and cultural analysis of China's "missing girls" (sex-ratio imbalance), concluding that sex selective abortion has become the primary cause of China missing approximately ten percent of females at birth. The article focuses on both cultural factors and China's population control policies as causative factors.

Part II discusses population control, declining fertility, and the devaluation of girls and women, analyzing a context where declining fertility has been accompanied by continued and profound discrimination against females.

Part III discusses abortion within the context of population control policies, technological control of procreation, and the large-scale, illicit practice of sex-selective abortion.

Part IV discusses approaches to reducing China's sex-ratio imbalance and the practice of sex-selective abortion. Part V discusses China's intercountry adoption program, analyzing the causes of the statistical changes in intercountry adoptions, including the significant declines from 2004 through 2010. This section discusses intercountry and domestic adoption in China within the contexts of China's population control policies, sex ratio imbalance, sex-selective abortion, and trafficking issues.

Suggested Citation

David M. Smolin. "The MIssing Girls of China: Population, Policy, Culture, Gender, Abortion, Abandonment, and Adoption in East-Asian Perspective" Cumberland Law Review 41.1 (2011): 1-65.

The entire article is available at http://works.bepress.com/david_smolin/9

CA Family Courts Helping Pedophiles Get Child Custody

According to this article in SF Weekly,

Looking out for the children who find themselves in the middle of bitter divorces is the most important function of the state's family courts, and arguably one of the most significant duties of the judiciary as a whole. Yet evidence has mounted in recent years that it is a responsibility in which family court officials are sometimes failing dramatically.

Interviews with dozens of parents, activists, lawyers, judges, children, and former family court employees, as well as a review of hundreds of pages of family and criminal court documents, indicate that the system's methods for assessing whether child sexual abuse or spousal battery has taken place — findings that are critical to deciding whether a parent should retain custody of or visitation rights with a child — fall short of the standards accepted by domestic-violence experts and the criminal-justice community.

The results can be tragic. In some cases . . . abuse allegations have been confirmed decisively, in the form of criminal convictions, after a poor custody decision was made. In others, court officials have ignored existing domestic-violence convictions, sending children to live with admitted batterers. In at least one case, an infant boy lost his life because of a judge's refusal to take seriously warnings about an unstable parent.

Compounding these issues, critics say, is a lack of accountability for judges, attorneys, custody evaluators, and other court personnel, who enjoy immunity from lawsuits even in cases where they make decisions that do obvious harm to children and parents.

The article focuses exclusively on cases, both in the San Francisco Bay Area and the rest of California, where allegations of domestic violence or child molestation were backed up by criminal convictions — and, in one case, a murder-suicide. The SF Weekly concludes that in all of the cases reviewed "the courts seem to have failed to follow basic procedures, including some dictated by state law, for weighing evidence of a parent's abusiveness before making crucial custody decisions."