Teens charged with child porn for nude selfies

Is it possible to sexually exploit one’s self?

That question is one of many conundrums in the recent case of a teenage North Carolina couple charged with making and distributing child pornography.

Their alleged crime: snapping and sending nude photos – of themselves.

The case has drawn fierce criticism from legal scholars around the country, many of whom see it as an egregious misuse of laws intended to protect – not prosecute – minors. The story of the two teens caught in a terrifying legal morass has also made headlines as far away as Russia. Meanwhile, local officials have begun blaming one another for the bizarre prosecution. Even the lawmaker who crafted the law says it’s being misapplied.

“Pretty much everything about this case is appalling,” Mary Anne Franks, a law professor at the University of Miami, told The Washington Post in an email.

The strange story began last year when the Cumberland County Sheriff’s Office was investigating accusations of a statutory rape involving students at Douglas Byrd High School in Fayetteville, N.C., according to the Fayette Observer.

As part of a broad investigation, sheriff’s deputies examined the cell phone of Cormega Copening, a star football player who was then 16 years old.

The deputies didn’t find any evidence relating to the alleged statutory rape. What they did find, however, were consensually taken nude photos of Copening and his girlfriend, Brianna Denson, also 16 at the time.

(The Post is using the teenagers’ names because they have been charged as adults. They did not return requests for comment.)

“We seized his phone and while our investigators went through the phone they saw there were photos of himself and another person,” Sgt. Sean Swain told ABC 11.

In almost any other state, such consensually taken photos would be completely legal or, at worst, a misdemeanor. But in North Carolina, Copening and Denson came up against a counter-intuitive confluence of laws.

“In North Carolina you are considered an adult at 16 years old as far as being charged,” Swain said. “But to disseminate and receive sexually explicit texts, photos or videos, you must be over 18.”

And so it was that in February, the two teenagers were arrested for sexually exploiting… themselves.

Charging documents listed Copening as both the culprit (as an adult) and the victim (as a minor), simply for snapping a nude photo of himself in the mirror and sending it to his girlfriend.

“Copening’s age traps him in a sort of sexting legal netherworld,” wrote North Carolina Lawyers Weekly. “He’s accused of exploiting a minor (himself), but because North Carolina is one of just two states that automatically tries 16-year-olds as adults, he’s being tried as an adult.”

All told, prosecutors charged Copening with five felony counts of sexually exploiting a minor: two for taking nude selfies, two more for sending them to his girlfriend, and one for possessing an explicit photo of Denson on his phone. Denson, meanwhile, was charged with two felony counts of sexual exploitation of a minor: one for taking a nude selfie and another for sending it to Copening.

The felony charges meant that Copening faced up to ten years in prison, if convicted; Denson faced up to four. They would also be labeled sex offenders for life.

Copening, a college football prospect who had transferred to another school over the summer, was benched by his new team because of the charges. Both his and Denson’s photos were splashed across news Web sites from North Carolina to Russia.

The case quickly drew intense criticism, both in Fayetteville community and around the globe.

“We’ve got too much big crime in this community to put this kind of effort into wrecking two kids’ lives,” wrote the Fayetteville Observer’s editorial board. “This should never happen again to anyone.”

Legal scholars lined up to pick apart the prosecution’s case. Many focused on the sheer absurdity of the situation.

“It’s dysfunctional to be charged with possession of your own image,” Justin Patchin, a professor of criminal justice at the University of Wisconsin and cyber bullying expert, told the Guardian. “I don’t think it should be a criminal offense where there is no victim.”

“You’re talking about millions of kids being charged with child pornography” if the law were applied nationwide, psychologist Jeff Temple of the University of Texas Medical Branch told the Fayette Observer.

Others delivered even starker assessments.

“It’s ludicrous,” Fred Lane, a computer security and privacy expert, told the Guardian. “It’s crazy. It’s an overreach.” He explained that such laws stem from the 1983 Supreme Court decision upholding a ban on child porn, but that many state laws were woefully outdated in our current era of cell phones and texting.

But Mary Anne Franks, the University of Miami law professor, said the issue is simpler still: it’s all about consent.

“This 1/8case3/8 demonstrates an utter failure to understand the nature of sexual exploitation,” she wrote in an email to The Post. “Consensual sexual activity among peers should not be a crime; we should not allow our social hysteria over teen sexual activity to justify prosecutions that will destroy teenagers’ lives ‘for their own good.’”

Franks was alluding to Swain’s suggestion that authorities were “saving” the teens from themselves – by arresting them.

“This technology and this problem that we’re having with this case, we don’t know where it’s going to go in five years when they apply for college,” Swain said. “We don’t know where these pictures are going to go. We’re more or less saving the kids from themselves because they’re not seeing what’s going to come down the road.”

Franks said the slope really isn’t that slippery.

“Sexual activity that does not even involve another person – such as taking a sexually explicit photo of yourself – should not ever be a crime. In fact, criminalizing such expression likely violates the First Amendment,” she said. “Child sexual exploitation laws were clearly designed to address the exploitation of children by adults, not teenagers exploring their sexuality on their own or with a willing peer.”

Officials would be better off focusing on numerous instances of people maliciously sharing explicit photos or videos against the wishes of those depicted, so called “revenge porn,” she said.

“Non-consensual sexual activity, on the other hand, including the creation or distribution of private sexual images, is wrong and should be a crime. This should be the focus of law enforcement, yet North Carolina does not yet even have a law prohibiting this conduct,” Franks said.

She isn’t the only legal scholar to criticize the case against the two teens.

“The facts make no sense,” former N.C. Supreme Court Associate Justice Ed Brady told the Fayette Observer. “Could the boy look in a mirror at himself? What’s the difference?”

Meanwhile, simultaneously treating the teens as both minor victims and adult criminals could violate the 14th Amendment’s requirement that every person be treated equally under the law, another expert told the newspaper.

Such legal advice is now moot, however, as both teens have taken plea agreements in order to avoid trial. In July, Denson pleaded guilty to a misdemeanor charge of “disseminating harmful material to minors.” If she stays out of trouble for the next year, her record will be wiped clean and she will avoid the label of sex offender.

Copening followed suit earlier this month, pleading guilty on Sept. 4 to two similar misdemeanor counts in exchange for the same deal.

Although the case is now closed, the debate is far from over. In fact, the blame game over who is responsible for the high-profile prosecution is just getting started.

“The legislature makes the law; I enforce it,” Cumberland County District Attorney Billy West told the Fayette Observer. “The legislature has obviously criminalized the conduct, arguably at a more serious level than we resolved the case at.”

Similarly, Sheriff Moose Butler told the newspaper that he didn’t necessarily agree with the felony charges but that it was his duty to enforce the law as it’s written.

But the man who wrote the law back in 1990 said he never intended for it to be used against kids in a consensual relationship.

“That would seem to me not the thing that most prosecutors are elected to do,” said state rep. Paul “Skip” Stam of West’s decision to prosecute the two teens.

A 2014 Drexel University survey found that 28 percent of minors had sent sexually explicit photos via text messages. Nearly two thirds said they were not aware their sexts could be considered child porn.