Teens Beware: Sexting may Result in Felony Child Pornography Charges

By Rhonda Denny, Esq.

In an increasingly common scenario, a teenage girl takes a sexually suggestive naked or semi-naked picture of herself and sends it from her cell phone to her boyfriend’s cell phone.    They break up and the boyfriend passes along the picture to his friends, and eventually the picture is passed along by cell phones to teenagers all over the school.  The girl who originally sent the picture is humiliated, suffers from emotional harm, but as much as she wishes she could,  she cannot take the photo back.  The damage is done.  However, what is often overlooked is that these teens are committing the serious felonies of possessing and disseminating child pornography.

Many people think that laws which specifically protect children from sexual assaults or from being sexually exploited in visual depictions do not apply to crimes committed by children against children.  Think again!  In a recent Indiana Case, W.C.B. v. State, Ind App. , 855 N.E.2d 1057 (2006), the Court explained that such a statute  “applies equally to all persons, regardless of age, who engage in specified sexual conduct-with requisite criminal intent… Pursuant to the statute, no person may engage in such conduct. No burden of refraining from engaging in this conduct is placed on W.C.B. that is not uniformly applicable to all juveniles under the age of fourteen…By the same token, all children under age fourteen… are protected from being molested or sexually exploited by another person…The mere fact that [W.C.B.] is protected from such exploitation and could be a victim in another case … does not give him a license to freely victimize other children.” (emphasis added).

All states have laws that make it a crime to disseminate child pornography.  While states differ in the specified age of the victim and in specific definitions,  some typical examples are:
In Alabama it is a felony to possess or possess with intent to disseminate obscene matter containing a visual depiction of persons under 17 years of age involved in obscene acts which  includes photos of breast or genital nudity of a person under the age of 17.  Ala.Code 1975 § 13A-12-192

In Illinois it is a felony for a person to possess photos of a person whom the person knows or reasonably should know to be under the age of 18, “depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the child or other person.”  720 ILCS 5/11-20.1   Conviction carries a mandatory minimum fine of $1000 and a maximum fine of $100,000.

In many states, consent to such filming, possessing or distribution by the minor, or the minor’s parent, or mistake as to age is not a defense. See for instance SDCL 22-24A-3 (South Dakota)

In determining whether naked pictures qualify as child pornography many jurisdictions follow the guidelines set forth in People v. Kongs, 30. Cal. App. 4th 1741 (1994)  p. 1755 which considered:

 “1) whether the focal point is on the child’s genitalia …; 
  2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
  3) whether the child is in an unnatural pose, or in inappropriate attire, considering the age of the child;
  4) whether the child is fully or partially clothed, or nude;
  5) whether the child’s conduct suggests sexual coyness or a willingness to engage in sexual activity;
  6) whether the conduct is intended or designed to elicit a sexual response in the viewer.”

The photograph of a naked minor does not need to satisfy all of these criteria in order to be considered illegal to possess.  The decision is made based on the overall content of the photo.

Not only does a conviction under these statutes carry substantial fines and possible jail time, but the Courts in many jurisdictions will also require the convicted juvenile to register as a sex offender.  Dissemination, which means passing the photo along or showing it to others, carries worse penalties than simple possession. 

Sexting can be a serious crime.  Teenagers need to be aware of the serious consequences of their actions.  If a teenager receives a sexual photo of a peer they should immediately report this to a trusted adult (parent, teacher, counselor, etc.), who should contact the police.

© Rhonda Denny 2009

(Posted with the author’s permission.  All rights reserved.)