Child pornography laws are aimed at protecting children; by criminalizing the possession and distribution of child pornography, lawmakers aim to eliminate the harm to children when such materials are created. The penalties are steep—under Texas laws, possessing images of those under the age of 18 engaging in sexual conduct is a felony. Federal convictions result in long sentences. A child pornography conviction in any court will result in lifetime sex offender registration.
However, the phenomenon of teen ‘sexting’ has put legislators in a difficult position. The practice of ‘sexting’—teens creating and sending sexually explicit text messages to one another—is on the rise. A 2008 study by the National Campaign to Prevent Teen and Unplanned Pregnancy stated that 22 percent of teenage girls have electronically sent or posted nude or semi-nude images of themselves.
Though such acts are forbidden under existing child pornography laws, these acts often are not prosecuted even when they are discovered. Prosecutors are hesitant to press charges for these acts, given the severe penalties of conviction for these felonies—including mandatory registration as a sex offender, potentially for life.
To address this situation, Texas lawmakers have proposed new legislation that would crack down on sexting with offenses and penalties that are less severe.
Under Texas Senate Bill 407, those under the age of 18 who are convicted of sending sexually explicit images of themselves or others under the age of 18 could face misdemeanor charges rather than felony charges. This effort to mitigate the harsh effects of law on those they were intended to protect may have unintended consequences. Will this give adults trafficking in child pornography the opportunity to use children as ‘mules’, to send these illicit images?
If both laws are on the books, could one prosecutor choose this sexting bill to prosecute and another use the older child pornography laws in her cases? In addition to these potential issues of the misuse of prosecutorial discretion, would other states recognize Texas’ decision not to require sex offender registration, or would they require such registration if the convicted person transfers to their states? This is a significant issue in other areas regarding sex offender registration law.
Regardless of what happens with this bill, it is important to understand that teenage sexting may have serious consequences. If your child faces criminal prosecution for sexting, speak with a knowledgeable criminal defense attorney to discuss the options and the most effective way to mitigate any consequences.