DENVER — A bill to close a sexting loophole would leave a sexting loophole.
It is legal in Colorado for an adult to have explicit sexual text conversations with a 15, 16 or 17-year-old, as long as there are no photos or videos involved.
Legislation debated on Thursday at the State Capitol would have made that type of conversation illegal as long as they were a request for photos, videos or even a meet up.
"It makes the photos and videos themselves irrelevant at all. The new law would criminalize someone in a position of trust from even requesting that type of photo or video from a child," said Amanda Gall, a sexual assault resource prosecutor with the Colorado District Attorney's Council.
The bill proposed by Rep. Matt Soper (R-Delta) and Rep. Dylan Roberts (D-Avon) would have eliminated the need to actually recover the photos or videos, to get a conviction.
In December, a teacher at Moffat County High School was found not guilty of sexual exploitation of a child.
"The teacher was charged with 10 felony counts of sexual exploitation of a child based on evidence that he allegedly elicited three nude photographs of a female student over the course of a sexually explicit text message exchange," said Moffat County School District Superintendent Dave Ulrich during the bill's first hearing on Thursday.
The photos and videos were never recovered.
In December, Moffat County Deputy District Attorney Matt Karzen told Next why that was problematic.
"The charge of sexual exploitation of a child was hinged on, or hinges on, the presence of an image, a sexual image. We didn’t have the images, we just had the victim's testimony that the images existed," Karzen said.
"The more I started to dig into it, I realized that actually there is a pretty big loophole that exists here," said Soper. "You shouldn't have a teacher that is sending Snapchat or text messages to a young student asking them to expose or reveal things that no one should ever be asked of."
The bill would still not criminalize an adult sexting a 15, 16 or 17-year-old with sexually explicit words without requesting photos, videos or meeting up.
"A teacher, a coach who says to a child 'I find you very attractive, here are all the sexually explicit things I would like to do to you,' this bill will not cover that conduct. We're going to have to address that conduct in a future bill or with a future legislature," said Gall. "It's very rare that someone who's sexually preying on a child is only going to engage in words. It is almost always the case that they're going to take an additional step to obtain photos of that child or to meet that child in person."
Soper and Roberts' bill needed to be redone from the start. Public defenders and legislators had concern that the way it was written was going to cast too large of a net and possibly criminalize doctors and sex educators having appropriate conversations about sex health with patients over text.
"We would not want to see a bill that was so broad that it criminalized that kind of conduct,' said Gall.
"We really want to emphasize the 'person of trust,'" said Soper. "We're talking about teachers. We're talking about coaches. We're talking about people that your child looks up to."
The bill was "laid over" and put on hold in committee, until the concern about criminalizing legitimate sexual conversation was looked into in more detail.
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