FindLaw KnowledgeBasePublished: 2013-01-29
Even the cheapest cell phones available these days feature a camera and the ability to send and receive pictures via text messaging. Texting remains incredibly popular as a means of communication; CNN Money reported that U.S. cell phone customers sent an average of 675 text messages per month in the third quarter of 2012. But what happens when some of those messages contain explicit content?
“Sexting” refers to sending or receiving sexually explicit photos via text message. According to a Pew Research Center study, 6 percent of American adults — one in every 16 — has sent a nude or nearly nude photo on a cell phone. About 15 percent have received such a text. Virtually every previous study has indicated that sexting rates are far higher among teens.
Sexting may seem like harmless fun. However, it can lead to real consequences, including child pornography charges under certain circumstance.
Intent, consent of minor generally irrelevant in child porn or exploitation cases
Most child pornography statutes are written in a way that criminalizes sexting involving a minor regardless of intent. For example, if a teen receives a nude image of a fellow student and shows it to his or her teacher, both the teen and the teacher could technically be considered to be in possession of child pornography.
Things get even more complicated when the transmission of sexts is considered. A minor who takes a nude photo of him- or herself and then texts it could meet the legal definition of distributing child pornography — as could anyone who receives and then forwards such an image. Anyone who asks or permits a minor to send a sext could also face charges for sexual exploitation of a minor.
A minor’s consent to sexting is, legally speaking, largely irrelevant. Even if a minor instigates the sexting, anyone who receives or forwards the images could wind up in serious trouble.
Charges involving sexting should not be taken lightly
Child pornography prosecutions for sexting are relatively rare. Yet, almost any sext involving a minor could be fodder for an ambitious prosecutor, and the consequences of a child pornography conviction are severe and long-term. Those convicted of child pornography charges in state or federal court could face real time behind bars as well as mandatory registration as a sex offender.
Make no mistake: possession or distribution of child pornography and sexual exploitation of a minor are very serious charges. If you’ve been charged with or are being investigated for either of these offenses, you should contact an experienced sex crimes defense attorney immediately for further advice. Remember, even a sext that seems relatively harmless can bring severe legal ramifications.