Mimesis Law
28 October 2020

Since When Is Sexting With Yourself Is A Crime?

Sept. 3, 2015 (Mimesis Law) — Cormega Copening and Brianna Benson, two 17-year-old students in Fayetteville, North Carolina, now find themselves at the center of a love story playing out across the nation in rapid fashion. They two teens are facing felony charges for privately sharing nude photos of each other consensually through “sexting.”

Investigators said the sexting happened while Copening was a student at Douglas Byrd High School last year. Officers took his cell phone while investigating another incident.

We seized his phone and while our investigators went through the phone they saw there were photos of himself and another person on the phone,” said Sgt. Swain with the Cumberland County Sheriff’s Office.

That “other incident” apparently happens to be allegations of a rape that occurred before Copening transferred to Jack Britt High School. No arrests were made in connection with that case, but when the police asked Copening’s mother for permission to search the boy’s phone, they found five photos of his girlfriend, Benson, and took it upon themselves to then investigate Benson’s phone, where five more illicit pictures of Copening were located. As both are minors, that leads to a great end run around the recent Supreme Court holding in Riley, and charges of “sexual exploitation of a minor” for both students.

You have to hand it to the Cumberland County Sheriff’s Office to figure out a way to get at a cell phone absent arrest and obtaining a warrant from a neutral and detached magistrate. Just hint to the kid’s mother that he or she may be in trouble, ask nicely to search the phone, and then swoop in to charge teenagers for the crime of lacking common sense in the digital age. Consent will always rule the day and avoid any nasty suspicion of law enforcement intimidation of a minor. In fairness, they played it exactly according to the rules.

Those five separate photos, exchanged with full consent of two people one year away from the age of majority, now constitute five separate counts of “sexual exploitation of a minor” in North Carolina’s statutory code. Details have yet to be released whether Copening and Benson were charged with Second Degree or Third Degree Sexual Exploitation of a Minor; the former involves possession and distribution while the latter is simply for possession. Both are felonies, though, Class E and Class H respectively.

And one can’t rule out the potential for adding charges. After all, as Sgt. Swain is happy to remind us: “Simple possession having it on your cell phone is a charge itself, and if you should send it out to another person that is a charge.”

Ironically, as Robby Soave points out at Reason, any harm that may come of this “charge” stems not from the teens’ possession of it, but from how the police handled it.

But Copening’s situation is more outrageous than most. As far as I can tell, the pictures weren’t shared with anyone else—this isn’t a case where a boy texted a girl’s nude photos to all of his friends and caused her some considerable public humiliation. The photos were private, and remained that way, until the cops got hold of them. If there’s public humiliation here, police intervention is the cause.

That never enters Sgt. Swain’s reminder, that if the offense causes no harm, the police will be happy to fill the gap.

Even though neither have been before a judge yet, those five counts of “sexual exploitation of a minor” have damaged at least Copening’s life. A high school quarterback, he’s been benched by the team pending a resolution of the charges. That’s a huge blow to a high school student, who is more than likely depending on his field performance to land a college scholarship, and even if the charges are deemed unfounded, they will haunt him as he heads to a college campus for a better education

If he beats those charges, and does land in college, with the pervasive “rape culture” mentality that exists on campuses nationwide, Copening will be seen as a pariah. His every word and deed will be scrutinized by those who see him as a serial predator, waiting in the wings for his next target. He will assuredly be denied participation in numerous activities, targeted by groups who want to make sure every special snowflake is protected from the consequences of questionable decisions, and harassed because of his youthful indiscretion.

Copening and Benson aren’t the first teens to be arrested by law enforcement for the offense of being children and doing stupid things with technology. It’s happening all around the country, and every arrest of a teen brings with it the traumatic experience of being handcuffed, thrown in a squad car, taken to processing for booking, and then being held in either processing or a cell until parents are called and release is authorized. The mere experience of being arrested is an often underappreciated trauma.

Convictions mean the children become the latest individuals to go on the sex offender registry in a given state. Depending on the wording of a state’s law regarding such offenses, these arrested teens will be deprived of job opportunities, the right to vote, and more before they ever get a high school diploma. Yet law enforcement sees no fault in taking a zero tolerance approach to this Very Bad Thing because it must be stopped at all costs.

I don’t think kids understand [sexting] is against the law. A lot of times they’re juveniles and they’re kids and they don’t understand that they can be charged for violating the law for doing this,” Sgt. Betterton continued.

It may be against the law, but police engaged in keeping teenagers safe from their tendencies to act contrary to good judgment have discretion when it comes to arresting them. That’s the key point some officers seem to carefully sidestep. In almost every jurisdiction, there are Youth Services Officers whose jobs require them to keep a juvenile delinquency matter such as this sensitive, confidential, and handled in a manner that doesn’t result in names making national headlines.

That could have happened with Copening and Benson, and yet it did not. One teen faces a life marred with restrictions because of police actions in handling this matter, and one is on the precipice of the same. The photos were never shared or distributed with anyone else; they were consensual and both teens were one year away from the age where these charges would never have been in issue.

Would it be too much to hope law enforcement officers, adults with years of life experience under their belt, to exercise the good judgment they ask of teens? Obviously, it is.

UPDATE: Since writing the original post, it’s since been revealed that Copening can potentially be charged as an adult with the heinous crime of possessing nude photos of a minor: himself. Three of the five counts of “sexual exploitation of a minor” with which Comega Copening has been charged, stem from photos he took of himself found on his phone.

The implication is clear: Copening does not own himself, from the standpoint of the law, and is not free to keep sexually-provocative pictures, even if they depict his own body.

North Carolina laws deem 16 the age when a party to a sexual offense is officially considered an adult. Since Copening is 17, his case falls outside the juvenile justice system if prosecutors will it and now becomes a matter for the adult courts to decide. No youth services officers, no discreet proceedings. It’s now straight to big boy court. Do not pass Go, do not collect $200.

It’s unclear whether Brianna Denson will be treated as an adult. Oddly, Denson was barely mentioned in the media when the story officially broke, and it now appears that Denson may get off with a plea to a misdemeanor charge and probation.

Not so for Copening. Is it because he’s a high school quarterback, the epitome of an entitled rapist in feminist circles? Is it because every photograph the media circulates is of a young man of color? While Brianna Denson remains somewhat behind the shield of relative anonymity, Copening is pilloried in the internet square.

The disparity in treatment cannot be explained in a society that purports not to discriminate by gender.

The initial post asserted that police needed to exercise far better discretion when arresting children for the offense of “sexting.”  Given the respective treatment of Comega Copening and Brianna Denson, discretion is hardly a sufficient answer.

While the wording of the law inaptly includes a teen who takes an image of him or herself, likely due to inept legislative drafting, the more basic question is whether teen sexting should be an offense at all. And even if answered in the affirmative, can the absurdity of a teen with a nude image of himself be justified as criminal? Yet, the law says so.

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    14 September 2015 at 7:13 am - Reply

    […] for the Copening case, Sgt. Sean Swain of the Cumberland County Sheriff’s Office, offers his explanation for this […]

  • Whose “Good Decisions”? | Simple Justice
    18 September 2015 at 8:22 am - Reply

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  • Minnesota’s Anti-Sexting Law Violates The First Amendment
    23 June 2016 at 9:30 am - Reply

    […] with cell phones.  Many states, in an effort to stop child pornography of the sort teens like Comega Copening “spread,” passed laws in an attempt to stop a “sexting epidemic.” The Minnesota Court of […]