By Jill Disis

jill.disis@indystar.com

The scandal began with a few clicks of a cellphone.

It might have started as risqué mischief: The dozen or so Avon High School students were storing and sharing nude photos of one another.

The "sexting" allegations, however, soon turned serious. School officials threatened harsh punishments for the teens. Police investigated to see whether felony charges of child pornography and exploitation were warranted.

In the end, authorities decided not to file charges. The specifics in the case still remain unclear, and neither detectives nor school officials are talking.

The situation illustrates a thorny issue for law enforcement and teenagers alike: How should authorities respond to a behavior that, while technically illegal, is growing more common among younger generations?

"The kids of that age are of the computer age, of the phone age, none of us can change that," said Frances Watson, a professor at Indiana University's McKinney School of Law. "They don't know it's conceivably a crime."

A natural drive

As more middle school and high school students gain access to cellphones, sexting has become a fairly common activity.

A 2009 survey from the Pew Internet & American Life Project found that 4 percent of teens who had cellphones said they had sent sexually suggestive nude or nearly nude images of themselves via text message. By age 17, the percentage rose to 8 percent, and nearly a third had received such an image on their phones. The survey had a 3.8 percentage-point margin of error.

Subsequent research has strengthened that notion. In 2012, researchers writing in the Archives of Pediatrics & Adolescent Medicine released a study after following 948 students at seven public high schools in Texas for three years. They found 28 percent reported sending a naked picture of themselves via text or e-mail, and 31 percent said they had asked for photos.

Debby Herbenick, co-director for sexual health promotion at Indiana University, said there is a natural human drive to connect with someone else. Teenagers, she said, become aroused and interested just as adults do.

"We can't deny teenagers have those feelings," said Herbenick, a sex research scientist and educator for 14 years. "These are really normal, healthy, common motivations, but we're living in a world with different technology than adults now grew up with."

Herbenick said teenagers sharing nude photos of themselves with their boyfriends or girlfriends typically are coming from a place of trust and hope for connection. They don't understand the legal risks, nor do they recognize the potential of those photos being shared with others.

She said teenagers sharing the photos with others have different motivations: shame, a joke, bullying, manipulating or peer pressure.

A tangled law

When bullying or intimidation factor into why teenagers share nude photos of themselves, the investigation and prosecution process can be fairly clear-cut.

In mid-December, a Trafalgar area teenager was preliminarily charged with child pornography and intimidation after police accused him of threatening several female classmates in order to coerce them into texting him nude photos of themselves. At least one girl complied, police said.

But when that sharing is mutual, legal experts say, deciding whether to prosecute a case can get complicated.

The Indiana statute covering child pornography and exploitation makes it a crime if someone "presents" or "exhibits" digital images of sexual conduct by someone under 18 — even if the presenter is also under 18.

A separate provision, meanwhile, applies if the image is only on a phone. In that case, the statute says, it's illegal to even possess the image, but only if the person being depicted is 16 or younger and the image has no "serious literary, artistic, political or scientific value."

Watson, the McKinney School of Law professor, said lawmakers have made some sexting activity forgivable. A teen exchanging images with just one other teen, for example, can successfully defend against a felony conviction if both are close to the same age and the images aren't sent to anyone else.

But in other cases — such as the Avon case, where several minors shared photos with one another — the youths still could face charges of child pornography exploitation.

Each is a felony, punishable, depending on circumstances, by up to three years or eight years in prison.

"It's right there on the books," Watson said. "When it's brought to the prosecutor, then that's your job to see if you think there's a probable cause."

When it's time to make that decision, police usually err on the side of not arresting the teenagers — though arrests aren't unheard of.

In a study of almost 3,500 cases of youth-produced sexual images during 2008 and 2009, researchers at the Crimes Against Children Research Center at the University of New Hampshire found police made arrests in 18 percent of cases classified as non-abusive or "experimental."

In contrast, cases involving minors engaged in malicious or abusive sexting behavior were much more likely to result in arrests — 62 percent of the time, the study said.

Prosecutors who have faced the issue firsthand say it's a situation best dealt with on a case-by-case basis.

In 2010, Brian Gensel, a prosecuting attorney in Porter County, had the option of charging two middle school students in Valparaiso with child pornography and exploitation. Ultimately he declined to press charges.

"I never intended to charge these kids," Gensel said. "What I did, which is what nearly every right-thinking prosecutor does in such a circumstance, is have the juvenile probation department perform an 'informal adjustment' wherein they meet with the kids and their parents and explain why such behavior is bad and wrong and why they should stop doing it.

"We haven't had any additional incidents involving those kids."

A gray issue

As sexting increases among teenagers, many states have responded with legislation meant to address the behavior.

From 2009 to 2012, at least 20 states and Guam enacted bills targeting teenagers and sexually explicit images, according to the National Conference of State Legislatures.

Since at least 2009, Indiana's criminal code has specifically said that having sexually explicit images of someone 16 or younger on a cellphone constitutes child exploitation and pornography.

The statute could change if one lawmaker has his way.

Sen. Jim Merritt, R-Indianapolis, has for the past couple of years proposed diluting the law. If offending teenagers in a sexting case are prosecuted under the current law, they face a felony charge. Merritt wants to make the crime a misdemeanor in those cases.

"It's a parental issue and not a prosecutor issue," Merritt said. "It will be against the law, but I really believe it's a teaching moment and kids do make mistakes. And this is a part of the law that ought to be a little gray rather than black and white."

Merritt said he hopes to introduce that change again this session.

Gensel, the prosecutor from Porter County, said he thinks his office's handling of the 2010 sexting cases has led prosecutors to discuss how best to deal with the issue.

"Unless there was evidence that it was more than digital 'I'll show you mine if you show me yours,' " Gensel said, "formal prosecution was not necessary. As in much of criminal prosecution, cases have to be judged on their individual facts."

Herbenick, the sex researcher, encourages parents to talk to their children about sexting so they make good choices. She said many parents closely monitor their children's use of technology.

Herbenick also said it is important that children feel comfortable coming to their parents if a situation does spiral out of control.

"Embarrassment, shame, discomfort and betrayal are hard emotions at any age, but particularly when you are a teenager," Herbenick said.

Star reporter Marisa Kwiatkowski and USA TODAY contributed to this story. Call Star reporter Jill Disis at (317) 444-6137. Follow her on Twitter: @jdisis