Teens have flirted with each other since the beginning of time, but technology has taken flirting to new and increasingly dangerous places. Teens and their parents need to be made aware that “sexting” carries with it the very real risk of criminal investigation and, in the right case, prosecution.
Virtually every teenager has a smart phone. These phones have the technology to make and create photographs and videos, and to send those in an infinite number of directions over phone and wireless internet signals. More often than we care to admit, those teenage produced photos or videos include nude and/or sexually suggestive material. “Sexting” is the sending or receiving of nude or sexually explicit photos, or communications by text message, Snapchat, direct messaging, email or any other electronic means, usually via a mobile device. While most investigations into teenage sexting stay out of the media, sexting did make recent headlines when phones were confiscated from a group of junior high students at Nixa Junior High.
Many people believe that parents and school officials – rather than police officers and prosecutors – should handle teen sexting cases. While that has been the norm in most cases, it is becoming more and more of a challenge to keep these cases out of the hand of law enforcement. An ever-increasing number of high school boys or girls, feeling the pressure and influence of their peers, are sending what they perceive as being “flirty” nude or partially nude photographs and videos. Dependent upon the content of the images, and the age of the child sending or receiving these images, what may be intended as flirty, can easily be interpreted by a police officer or prosecutor as child pornography. Any nude or sexual image of a child under the age of 18 can be considered child pornography.
Understandably, this could cause a young person to have very serious legal problems, and could create other consequences that could follow them for the rest of their life. Teens often engage in such behavior because to them it is fun or adventuresome, similar to underage drinking, unprotected sex, and the feeling of invincibility – but what their undeveloped brains do not allow them to easily understand is that this conduct can quickly turn into very unintended and dangerous consequences. Some states have specific laws targeting teen sexting, while Missouri has sex crime laws that can, in the right circumstance, be used to prosecute teens involved in sexting. In 2009, Missouri passed a law amending the State’s child pornography law so that any minor (under the age of 18) who distributes or possesses explicit images of a minor engaged in sexual activity would not be guilty of a felony, and would not need to register as a sex offender.
Some states have specific laws targeting teen sexting, while Missouri has sex crime laws that can, in the right circumstance, be used to prosecute teens involved in sexting. In 2009, Missouri passed a law amending the State’s child pornography law so that any minor (under the age of 18) who distributes or possesses explicit images of a minor engaged in sexual activity would not be guilty of a felony, and would not need to register as a sex offender.
The current Missouri sexting statute states:
- Under Missouri law it is a Class A misdemeanor for a minor person to possess or distribute sexually explicit images of a minor, if it is the minor’s first offense.
A Class A misdemeanor is punishable up to 1 year in jail and $1,000.
- If a minor is caught possessing or distributing a sexually explicit image of a minor a second time, the crime is increased to a Class D felony, which is punishable by up to 4 years and a fine up to $5,000.
- Under Missouri law the minor will not need to register as a sex offender if convicted.
If an adult (someone over the age of 18) is caught possessing, distributing or promoting a sexually explicit image of a minor, then criminal consequences become much more severe. That adult can be charged under the State’s child pornography laws and, if convicted, face the risk of incarceration and the need to register as a sex offender. The penalties for adults is increased if the adult persuades, coerces or entices the minor to engage in the sexually explicit act, or if the adult tries to use the sexually explicit images to make a profit.
This is where the ages of the teenagers involved can become very important. Under the age of 14 is deemed to be a child, and the consequences for possessing or distributing images of a sexual nature involving a child are punished much more severely. Between the age of 14 and 17, a person is deemed to be a minor. However, in Missouri, a 17 year old can be charged as an adult in most circumstances. At 18, the law considers the person an adult. It is not difficult to see a circumstance where a 17 turned 18 year old is dating a 15 or 16 year old, and, through a series of unfortunate choices, possesses or distributes sexually explicit images of the 15 or 16 year old. In that situation, a felony investigation and prosecution is a very real risk, and can be a life altering event for both young persons.
As if prosecution in state court is not bad enough, depending on the circumstances, sexting of sexually explicit images involving a child or a minor is likely also be a crime under federal law. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 makes it illegal to produce, distribute, receive, or possess with the intent to distribute any obscene visual depiction of a minor engaged in sexually explicit conduct. Knowing possession of such material- even without intent to distribute-is also a crime under the PROTECT Act. (18 U.S.C. §1466A(a)(1)). For juvenile offenders, prosecution for sexting may be unlikely. The Federal Juvenile Delinquency Act (FJDA) generally provides – where possible-juveniles should be prosecuted in state court rather than federal court. (18 U.S.C. §5032)
For juvenile offenders, prosecution for sexting may be unlikely. The Federal Juvenile Delinquency Act (FJDA) generally provides – where possible-juveniles should be prosecuted in state court rather than federal court. (18 U.S.C. §5032)Federal law also criminalizes causing a minor to take part in a sexually explicit conduct in order to visually depict that conduct. Parents who knowingly allow this behavior can also be prosecuted. (18 U.S.C. §2251)
Federal law also criminalizes causing a minor to take part in a sexually explicit conduct in order to visually depict that conduct. Parents who knowingly allow this behavior can also be prosecuted. (18 U.S.C. §2251)
It’s also a federal crime to use a computer to ship, transport, receive, distribute, or reproduce for distribution a depiction of a minor actually engaging in sexually explicit conduct, or any material that otherwise constitutes child pornography. It’s another federal crime to promote or solicit sexually explicit material involving a minor. (18 U.S.C. §2252, 2252A)
A new bill passed in the U.S. House of Representatives in May 2017 called “Protecting Against Child Exploitation Act of 2017.” This bill seeks “to criminalize the knowing content of the visual depiction, or live transmission of a minor engaged in sexually explicit conduct.” The way the law is written, it exposes teenagers, and certainly young adults, who send or receive, via text or other electronic means, images containing explicit yet consensual sexual content, to the risk of prison for 15 to 30 years for a first offense.
Teenagers see this behavior as harmless fun. Most parents are not much better, and do not realize the risks and consequences that come from school or law enforcement investigations, until it is too late. The best course of action is prevention. Parents need to talk to their teenagers about the consequences of sexting, and they need to stay involved in their child’s online and phone activities. Parents also need to realize if their teenager is caught sexting, or is accused of any one of a myriad of criminal accusations that come from these investigations, they should immediately consult an attorney who has experience in this area of law. Do not answer any questions, and just as important, do not provide password information or a consent to search, any phone, computer or other electronic devices, until you have obtained the advice of an experienced criminal defense attorney.
By Lisa D’Alesio
About Carver, Cantin and Mynarich
Tom Carver, Shane Cantin and Erica Mynarich are highly skilled and experienced criminal defense attorneys representing clients in state and federal courts throughout Missouri. They defend individuals who find themselves under criminal investigation by law enforcement or grand jury, or who are already charged with having committed some offense.