In Tumwater, Thurston County, a recent case involving three students and a cell phone picture of a nude, underage ex-girlfriend sent to several students in text messages had left the judicial system grasping for a law under which to prosecute. Prosecutors initially charged the students with possession and distribution of child pornography, the conviction of which would have required them to register as sex offenders. That charge has now been dropped to telephone harassment, a gross misdemeanor that will be cleared from their records if they complete certain requirements.

The problem is that the letter of the law made child pornography charges fit the situation, though the consequences of that charge would be harsh considering the context of the crime and the offenders’ ages, said Brad Moericke, the assistant chief of police in Sumner and a former attorney.

There is currently a vacuum in Washington state law that fails to address the issue of underage persons transmitting inappropriate pictures amongst each other.

Sumner School District Spokesperson Ann Cook discussed what policies have been put in place at local schools. Both she and Moericke have provided background on the solutions the court and state lawmakers are exploring with the issue.

Incidents similar to the Thurston County case in terms of student conduct have occurred in the Sumner School District, but never elevated to a criminal charge, Cook said. The unique issue of sexting exists at the intersection of three policy areas in the district’s disciplinary conduct code: general harassment, sexual harassment and cell phone use on campus. Harassment and its sub-behaviors – intimidation, bullying and cyberbullying – are addressed to each grade level at the beginning of the year.

But schools are not the perfect battleground for this issue.

“The limitation of our rules is that they are only applicable at school,” Cook said. “Because the images are likely not produced at school, it’s rare that a violation actually happens at school. But the school becomes involved where these situations disrupt the school environment, which they easily can.

“That’s when the fourth policy area comes in: when anything happens to disrupt the educational process, we need to intervene. In fact it usually comes to a school’s attention because a student won’t know who to go to and they figure their school is the appropriate authority to go to.”

The district has guidelines in place for handling cell phones or other camera devices with possible explicit content. If administration receives a report of such a device, it will be confiscated for inappropriate school time use and the confiscating employee will shut off the device without looking at the contents, in order to avoid issues of illegal search. It is then passed on to the appropriate authorities, whether that involves the police or not.

The district is looking at adding more specific policy language regarding sexting and cyberbullying as soon as next autumn, Cook said.

Similar to the challenges in school policies, criminal law is in a place where prosecuters attempt to handle sexting and cyberbullying cases through existing laws that are loosely related but often ill-fitting, Moericke said. The result is cases like the one in Tumwater, where the minors could have faced lifelong registration as sex offenders if convicted on child pornography charges.

“The statute on child pornography doesn’t designate a difference in sentence for age,” Moericke said. “I’m sure when lawmakers put that statute on the books, they imagined middle-aged or older-aged men with pictures of underage girls, not minors taking photos of themselves and sending them to other minors.”

Indeed, Web sites where news stories about the Tumwater case have received a barrage of responses calling a charge that would result in sex offender registration unnecessarily harsh for young adolescents. Even the current charge of telephone harassment in the Thurston case isn’t a perfect fit, as cell phones were only a medium for transmitting image files.

The issue becomes placing a statute on the books that specifically addresses redistribution of sexted images among minors. Moericke envisioned a policy that grades punishment based on the age difference between the victim and the distributor, similar to Washington state’s current sexual consent laws.

In the meantime, the Sumner community and school district is working to get ahead of the curve by revising the language of its policy. Principals have already recommended revising the section on use of “cell phones and electronic devices” with just “electronic devices” to reflect the multiple uses of many devices today.

A community summit is planned for March 18 at Bonney Lake High School to discuss current education issues. A presummit session on safe cell phone and Internet use will take place from 3 to 4:45 p.m.