Don’t underestimate the consequences of Sexting

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A conviction for teen sexting or child pornography can have extremely serious consequences. If you or your child is charged with such a crime as a result of teen sexting, you should contact Pittsburgh Attorney Steven C. Townsend, He has the experience handling these types of cases in juvenile and criminal court. Only an experienced criminal defense attorney can provide you with appropriate legal advice and inform you of the potential consequences of a conviction, including under what circumstances juvenile defendants may be required to register as sex offenders. Steven C. Townsend can tell you what to expect in court and help to you prepare the strongest possible defense.

Sexting is the sending of nude or suggestive photographs by text message, and, when teenagers do it, it can be illegal. Pennsylvania lawmakers have enacted a specific law that makes teen sexting a crime, but a less serious one than child pornography. However, depending on the circumstances, teen sexting could also be considered child pornography or obscenity.

Pennsylvania’s Teen Sexting Law

In 2012, Pennsylvania enacted a law criminalizing the transmission of sexually explicit images by minors. Under the state’s sexting law, it is a crime for a minor (a person under the age of 18) to:

Transmit, distribute, or disseminate (share) an electronic communication (such as a text message or instant message) containing a nude image of him or herself or any other person age 12 or older, but younger than 18, or possess a nude photo of another person between the ages of 12 and 17.

For example, both a teen who sends a photo of a nude classmate and one who receives the photo could be prosecuted under Pennsylvania law. Teen sexting is punished more severely if the defendant takes or shares a nude photo of another teen without the teen’s permission, and in order to harass that person or cause him or her emotional distress. For example, a boy who shares nude photos of his ex-girlfriend after they break up could be charged with a more serious crime. Pennsylvania’s teen sexting law does not apply to images taken or distributed for commercial purposes, or images of sexual intercourse, penetration, or masturbation, or any other hardcore sexual images.

(18 Pa. Con. Stat. §§ 5702, 6321.)

Child Pornography

Pennsylvania’s child pornography law makes clear that it does not apply to conduct prohibited under the state’s teen sexting law or to a child taking a nude photo of him or herself. However, it is considered child pornography (also called sexual abuse of children) to photograph or film a child under the age of 18 engaging in a prohibited sex act (sexual intercourse, oral or anal sex, masturbation, or lewd exhibition of the genitals) or cause a child to engage in a prohibited sex act for the purpose of being filmed, recorded, or photographed. It is also a crime for an adult to possess, distribute, disseminate, or exhibit to others child pornography (or for a teen to possess such an image if it features explicit sex or a child under the age of 12).

For example, a Pennsylvania man was convicted of child pornography based on photos he took of his 16-year-old girlfriend, with whom he lived and with whom he had a child. (Commonwealth v. Kitchen, 814 A.2d 209 (2002).)

(18 Pa. Con. Stat. § 6312.)

SEXTING AND FEDERAL LAW

Depending on the circumstances, sexting may 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 intent to distribute any obscene visual depiction of a minor engaged in sexually explicit conduct. Knowing possession of such material—without intent to distribute—is also a crime under the PROTECT Act. (18 U.S.C. § 1466A(a)(1).)

Federal law also criminalizes causing a minor to take part in sexually explicit conduct in order to visually depict that conduct. Parents who 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.)

But federal prosecution of juveniles for sexting may be unlikely. The Federal Juvenile Delinquency Act (FJDA) generally provides that, where possible, juveniles should be prosecuted in state—not federal—courts. (18 U.S.C. § 5032.)

Obscenity

Under Pennsylvania’s laws, it is also a crime to photograph, manufacture, or prepare any obscene material depicting a child under the age of 18; or produce, present, direct, or participate in any obscene performance featuring a child under the age of 18. It is also a crime to:

Sell, give away, transmit, or show any obscene material to a child under the age of 18, or disseminate any sexually explicit material depicting nudity or sexual conduct to a minor.

Generally, nude photographs or photographs that are sexual in nature are considered obscene. For example, an adult that shares a nude photo of him or herself with a teen could be charged with disseminating sexually explicit material with minors.

(18 Pa. Con. Stat. § 5903.)

When Does Prosecution Go Too Far?

Prior to the enactment of Pennsylvania’s teen sexting law, one case there received a lot of media attention. School officials discovered that students had been exchanging photos of nude and scantily clad teen girls and notified the local District Attorney. He met with the parents of the girls depicted in the photos and told them that the girls would have to participate in a diversionary program or face charges for possessing and distributing child pornography. The girls’ parents refused the diversion program, noting that the photos (one featuring a topless girl and another depicting two girls in their bras) were not pornographic and that the girls were the victims of someone else distributing the pictures. After the families sued, a federal court found that the proposed diversion program violated the girls’ and their parent’s constitutional rights and granted a restraining order to stop the prosecutor from pressing charges against the girls.

(Miller v. Skumanick, 605 F. Supp. 2d 634, 647 (M.D. Pa. 2009), aff’d sub nom. Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010).)

Punishment

Teen sexting. Teen sexting cases are often handled in juvenile court, where judges typically have greater discretion as to the outcome than they do in adult criminal court. Teens who possess images of other teens or who share images of themselves can be convicted of summary offenses. Summary offenses are punishable by up to 90 days in a jail and a fine of up to $300. The court may refer the teen to a diversionary program that includes an educational program about the consequences of sexting. If the teen successfully completes the program, the charges are expunged.

Sharing a teen sext depicting another person is a misdemeanor of the third degree, punishable by up to one year in jail and no more than $2,500 in fines. It is a misdemeanor of the second degree (punishable by up to two years’ incarceration and no more than $5,000 in fines) for a teen to share a sext of another teen without permission and in order to harass the child depicted. Under the teen sexting law, any cell phone or electronic communication device involved can be forfeited (taken by the state without compensation to the owner).

Pornography and obscenity. 

Photographing child pornography or causing a child to participate in the making of pornography is a second degree felony, punishable by up to ten years in prison and up to $25,000 in fines. Possessing or distributing child pornography is a felony of the third degree, punishable by as much as seven years in prison and up to $15,000 in fines. Disseminating sexually explicit material to a minor is also a felony of the third degree. Other obscenity convictions are misdemeanors of the first degree, punishable by up to five years in prison and no more than $10,000 in fines.

(18 Pa. Con. Stat. §§ 5903, 6312, 6321.)

Sex Offender Registration

In Pennsylvania, people convicted of child pornography crimes and any obscenity offenses where children are involved are required to register as sex offenders.

(42 Pa. Con. Stat. §§ 9795.1, 9795.2, 9799.11, 9799.14, 9799.15.)

Other Consequences of Teen Sexting

Teen sexting has other consequences, even if no criminal charges are filed. Images can easily be forwarded and shared, and even posted online. This can cause lasting damage to a teen’s reputation. Teens whose private images are shared are often humiliated and bullied. Some may become depressed and hurt themselves. Students who take, possess, or share sexts can get in trouble at school.

Background of the Pennsylavnia Sexting Law

A common behavior in relationships today involves the use of technology as in sexting. Sexting is also a very common, and often unreported, sex crime. By definition sexting the sending of an erotic, explicit or pornographic photo or video through an electronic device, such as a cell phone, tablet or IPod.

Pennsylvania made the practice of “sexting” nude or illicit photos a misdemeanor or summary offense for teenagers went into effect.  The new law is aimed to curb the practice of sexting among teenagers. Many, if not most, teenagers possess cell phones with cameras equipped, and it allows them to quickly take photos and send them to friends. Under the influence of hormones and possessing underdeveloped judgment, many of these teenagers send nude pictures of themselves or others to friends. 

A 2012 study, published in the Archives of Pediatrics and Adolescent Medicine Journal , reported that 28 percent of teenagers reported sending a nude photo of themselves through email or text message. 

The new law only applies to those between the ages of 13 and 17. Anyone alleged to transmit photos of a minor 12 or younger could face felony child pornography charges. Under the law, it is a summary offense, similar to the severity of a traffic violation, for a minor older than 12 to electronically transmit any picture of himself or herself, or to knowingly view or possess an image of another minor older than 12. So, if a 14-year-old texts a nude picture of himself to his girlfriend, it is a summary offense. If his girlfriend is caught with the picture on her phone, she may also be charged with a summary offense.

It is a third degree misdemeanor for a minor to transmit, distribute, publish or disseminate a picture of another minor younger than 12. If the girlfriend above forwards the picture of her boyfriend to friends, she could therefore be charged with a third degree misdemeanor.
If, with the intent to coerce, intimidate, torment, harass or cause emotional distress, a minor either makes some kind of visual depiction of the minor in state of nudity without that minor’s consent, or transmits, distributes, publishes or disseminates a photo of a minor in a state of nudity without that minor’s consent, it is a second degree misdemeanor. If a girl takes a photo with her phone of another girl in the shower in an attempt to bully that girl, she could be charged with a second degree misdemeanor, regardless of whether she sent it to anyone. If a girl sends her boyfriend a nude picture of herself, they break up, and he forwards the picture to friends in an attempt to humiliate her, he could be charged with a second degree misdemeanor.

While some states across the nation have put laws into place specifically targeting teen sexting, the Commonwealth of Pennsylvania has not, and these actions are often covered legally under child pornography laws. These child pornography laws are normally used to punish adults harshly who solicit suggestive photographs from underage people, however in cases of teen to teen sexting, the sharing of these photographs can provide harsh penalties to young people. One instance of this is the case of 6 young teenagers who were facing felony child pornography charges after sharing an explicit photograph of one of their 13-year-old peers. The charges were ultimately dropped for the teens, however, but they had the potential to face harsh punishments and a serious blemish on their criminal records if convicted.

This trend of teen sexting has been on the rise in recent years in Pennsylvania, with 20% of teens admitting to sending nude or suggestive photographs of themselves using their cell phone or other electronic device. This means that 1 in every 5 teenagers has sent an explicit photo to another individual, typically another teen, and these instances can cause these teens to be in the position of facing serious charges and penalties.

When going through something as serious as a sex offense you need effective legal representation. Call the Pittsburgh Juvenile Defense Lawyer, Steven C. Townsend.  He has the reputation and experience with handling all types of juvenile sex crime cases in Pittsburgh and surrounding area.