The practice of exchanging nude or sexually explicit photos via smart phone, known as sexting, has become more common with the proliferation of phones that have the capability to capture, send, and receive images.
The response from state legislatures to sexting involving sexually explicit images of underage persons has varied. Some states, such as Illinois, have passed laws that address sexting among teenagers, while other states have yet to pass such laws and instead apply punitive child pornography laws to teens who are legally adults who engage in sexting with teens who are underage. Arkansas falls under the latter category; however, on August 16, 2013, state Senate Bill 829 took effect, creating a teen sexting crime that applies only to juveniles.
(Ark. Code § § 5-25-101, 5-27-609, Ark. SB 829)
Under Arkansas’ newly-enacted Senate Bill 829, a juvenile commits the crime of possession of sexually explicit digital material by intentionally creating, producing, distributing, presenting, transmitting, posting, exchanging, disseminating, or possessing via computer, cell phone, or digital media any sexually explicit digital media. A juvenile is a person younger than 18.
The possession of sexually explicit digital material is a Class A misdemeanor. A juvenile convicted of the offense may be sentenced to eight hours of community service if the juvenile has no prior convictions for the crime. This includes juveniles who plead nolo contendre (no contest) or guilty. Otherwise, a Class A misdemeanor can be punished by a fine up to $2,500 and a maximum period of one year of confinement. A juvenile under 16 will be committed to the custody of the state’s Youth Services Division, while a defendant 16 or older will be committed to the Arkansas’ Department of Corrections.
Contained within the statute are two affirmative defenses. Under the first defense, a juvenile in possession of sexually explicit digital material will nonetheless be not guilty of the offense if the juvenile:
A juvenile also is not guilty of the crime if:
(Ark. Code § 5-27-609)
Because the Arkansas’ new teen sexting law applies onlyto persons under 18, an 18 or 19 year-old who exchanges images of sexually explicit conduct with a teen under 17 years of age may be charged with one or more of the following felonies. For these offenses, a child is defined as any person under 17.
State law defines sexually explicit conduct as actual or simulated sexual intercourse, bestiality, masturbation, sadomasochistic abuse for sexual stimulation, or the lewd exhibition of any person’s genitals or pubic area or of a female breast.
An adult who causes or allows a child to engage in sexually explicit conduct and knows, should know, or intends that the conduct may be photographed, filmed, reproduced, reconstructed in any manner (including on the internet), or featured as part of an exhibition or performance commits the crime of computer exploitation of a child in the first degree.
Computer exploitation of a child in the first degree is a Class B felony if the defendant has not previously been convicted of the crime. A conviction for a Class B felony carries a maximum sentence of 20 years in prison.
The crime is a Class A felony if the defendant has prior convictions for computer exploitation of a child in the first degree. Class A felony convictions carry up to 30 years in prison. Both Class A and Class B felonies carry possible fines of up to $15,000.
A person commits second-degree computer exploitation of a child by photographing or filming a child engaging in sexually explicit activity or by using any device, including a computer, to reproduce or reconstruct an image of a child engaged in sexually explicit activity. Computer exploitation of a child in the second degree is a Class C felony. Class C felonies carry a maximum penalty of ten years in prison and up to a $10,000 fine.
(Ark. Code § § 5-4-201, 5-4-401, 5-27-302, 5-27-601, 5-27-605)
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.)
An adult who sexts with a person under 18 may also be charged with computer child pornography if the adult receives sexually explicit images of the underage person.
A person commits computer child pornography by compiling, inputting, making, publishing, reproducing, buying, selling, receiving, exchanging, or transmitting via computer an image of sexually explicit conduct involving a child. A person also commits the crime by advertising or disseminating a child’s identifying information or description for purposes of facilitating, encouraging, offering, or soliciting sexually explicit conduct of a child or an individual believed by the person to be a child.
Computer child pornography is a Class B felony.
(Ark. Code § § 5-27-601, 5-27-603)
An individual commits the crime of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child if the individual possesses or views any type of image of a child engaged in sexually explicit conduct. An individual also commits the crime by knowingly selling, receiving for the purpose of selling, giving, trading, mailing, delivering, advertising, offering or otherwise distributing any type of image depicting a child engaged in sexually explicit conduct.
A first conviction is a Class C felony. Any subsequent convictions for the offense are punished as Class B felonies. Under the statute, a defendant may raise the defense that the defendant had a good faith reasonable belief that the person shown in the image was 17 years old or older.
(Ark. Code § 5-27-602)
In addition to possible prison time and fines, a person convicted of any of the above felonies will be required to register as a sex offender.
(Ark. Code § 12-12-905)
If you are charged with violating Arkansas law because you have engaged in sexting, you should speak with an attorney immediately. Arkansas’ child pornography laws contain serious penalties, including the possibility of a long prison sentence and registration as a sex offender. An experienced attorney can assess the charges against you and provide important guidance while ensuring that your rights are protected. Retaining a qualified lawyer is the most important step that you can take to secure a favorable resolution to your case.