Consensual 'sexting' between NC teens raises questions about criminal law

Many have suggested that the behavior is a discipline issue best handled by parents or guardians at home

By Anne Blythe
The News & Observer

RALEIGH, NC — After getting in legal trouble for what he took off, the quarterback at Jack Britt High School will be glad to put something back on – his uniform.

Cormega Copening, the high-profile player on the Fayetteville school’s team, was suited up again Friday night after being benched in late August for “sexting” allegations that landed him and his teenage girlfriend in criminal court.

The two were charged with making and possessing nude photos of themselves, and, in his case, having one of his girlfriend still on his phone. They faced possible prison time and being listed on the sex-offender registry.

The case drew national attention on law blogs and media sites. Questions were raised about whether teens who willingly send each other explicit pictures or videos should face the same criminal consequences as sexual predators.

Many have suggested that the behavior, which has been described in the Cumberland County case as consensual, is a discipline issue best handled by parents or guardians at home.

Copening, 17, and his girlfriend, Breanna Denson, 16, have entered into deferred prosecution agreements that could clear their records by next summer.

Perpetrator and victim

Denson originally faced felony charges and was listed as both the “adult perpetrator” and the “minor victim” on warrants. She took a plea deal in July on a misdemeanor charge of disseminating harmful material to minors.

A conviction on the felony sex crime charges could have put her in prison and would have required her to register as a sex offender for the rest of her life. Instead, Cumberland County District Court Judge Stephen Stokes sentenced her to one year of probation, a $200 fine, a class on how to make smarter life decisions and no phone access during her probation period. She was ordered to stay in school and refrain from using alcohol or drugs.

Copening entered a similar deferred prosecution agreement late last week, according to Cumberland County District Attorney Billy West. His case was complicated by another charge pending against him in an unrelated case, and it took more time to resolve than Denson’s.

Efforts to reach Copening and his attorney, Chris Godwin, were unsuccessful Thursday and Friday. Copening, who faced the possibility of prison time and a lifetime of being registered as a sex offender, was benched from the football team in late August while questions remained in his criminal case.

The case came to investigators in a roundabout way, according to the Cumberland County district attorney.

Sheriff’s deputies were investigating a different matter last year, and Copening provided access to his phone.

Although the investigation into the other matter yielded no connection to Copening, the district attorney said, Cumberland investigators came across explicit photos while looking through his phone.

The investigators delved further into the matter, West said. What resulted were the felony charges that many contend highlight problems with a state law that was designed several years ago to protect children from predators.

Sexting, which typically involves sending sexually explicit photos or messages via cellphone, has become more common among teens, studies show. A 2014 study from Drexel University, which was based on a survey of undergraduate students at a large northeastern university, showed that more than half of them reported sending sexually explicit texts, with or without photos, as minors.

Young people unaware

The study also found that a majority of the young people were unaware of the legal ramifications of such actions. Most had no idea that many jurisdictions consider sexting among minors to be child pornography.

In the Cumberland County case, in which there have been no public allegations of harassment or anything other than consensual texting, Copening initially was charged with sexual exploitation of a minor.

Since 2009, at least 20 states and Guam have passed laws addressing sexting, the National Conference of State Legislatures reported in 2014. Louisiana lawmakers passed a sexting law in 2010, the same year they addressed cyberbullying and made changes to an existing cyberstalking law.

According to a post on a UNC School of Government blog, there are three categories of criminal offenses in North Carolina that could be used to charge teens younger than 18 with sexting: obscenity laws, laws that prohibit disseminating harmful material to minors and laws targeting the sexual exploitation of minors.

Although Cumberland County investigators told The Fayetteville Observer that the sheriff’s office investigates sexting allegations several times a month, most of those are incidents when photos have been shared with a group without a teen’s consent.

West, the Cumberland district attorney, said the Copening and Denson cases are rarities, not the norm.

“There’s certainly no rash or epidemic of charges that we’ve seen,” West said this week.

Although the prosecutor is aware of the questions the recent cases have raised nationally, he said he had tried to proceed with the cases in a way that was an attempt at “being fair” while “striking a balance” that helps teens escape the severity of penalties but still holds them accountable for harmful actions.

Some of the cases, West acknowledged, never make it into adult court. If the accused are younger than 16, their cases are likely to be handled in juvenile court, where a judge can bring in a parent and handle the matter without criminal charges.

It is not illegal for adults to share nude photos of themselves, and 18 is the age at which someone may legally appear in a sexually explicit photo.

But North Carolina is one of two states that treats 16-year-olds as adults in criminal court. That opens a two-year window in which teens can face adult charges for possessing explicit photos that at age 18 would not bring them any legal trouble.

In such instances, juvenile court advocates point out, the teens do not have the option of handling their cases outside the glare of the public spotlight that juvenile court would have afforded.

The age of consent for sexual activity in North Carolina is 16, and it dips younger than that for teens who are less than four years apart in age.

“I personally don’t know all the facts of this case,” said James Anderson, a Cumberland County attorney who initially was outraged by the accusations and posted a comment expressing his amazement on the UNC School of Government site.

“It just seems more of a parental kind of issue than it is a criminal issue,” Anderson said Friday.

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