Sexting is the taking and sharing of nude or sexually explicit photos by computer or cell phone. While some states have enacted laws to deal specifically with teen sexting, North Carolina has not. In many states, including North Carolina, when sexting involves images of children under the age of 18, it violates state laws against child pornography, and teens can be prosecuted under laws intended to punish adult sex offenders. For example, in 2010 an 18-year-old boy in North Carolina was arrested and charged with two counts of child pornography and one count of disseminating obscene material after he sent a 14-year-old girl a sexually explicit photo of himself and asked her to do the same.
For more information, see Teen Sexting.
It is unclear how widespread sexting actually is among teenagers, but some surveys estimate that as many as 20% of teens have sent or received explicit photos. The same surveys show that many teens are unaware that sexting is illegal. Sexting has many other consequences aside from illegality. First, images can easily be forwarded, shared, or posted online. Once photos are on the Internet, they can be difficult to remove and this can cause lasting damage to a teen’s reputation. Second, teens whose private images are shared can be humiliated or bullied, or become depressed. In some cases, teenagers have hurt themselves. Third, students involved in sexting can get in trouble at school and children as young as eighth graders have been suspended.
In North Carolina, it is a crime (called sexual exploitation of a minor) to possess an image of a child under the age of 18 engaged in sexual activity. Sexual activity is broadly defined to include touching of any private part of the body or any display of the genitals. It is a more serious crime to record, photograph, or duplicate nude or explicit images of children, or to distribute child pornography. It is also a crime to persuade or encourage a child under the age of 18 to engage in sexual activity for the purpose of a live performance or the creation of pornography. For example, a 17-year-old who takes cell phone pictures of his 16-year-old girlfriend naked could be convicted of recording child pornography and, if he coaxed her into posing for the photos, perhaps even encouraging a child to make pornography.
(N.C. Gen. Stat. Ann. § § 14-190.13, 14-190.16, 14-190.17A, 14-190.17.)
For more information, see Child Enticement Laws in North Carolina.
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.)
It is also a crime under North Carolina’s laws for a person to model, pose for, or photograph anyone (including him or herself) for the purpose of making an obscene photograph or movie. Any depiction of sexual conduct or nudity may be considered obscene. For example, a teenage girl who allows herself to be photographed engaging in oral sex could be convicted of making an obscene photograph. It also is a crime in North Carolina for anyone over the age of 18 to disseminate (sell, furnish, present, or distribute) to a child under the age of 16 any obscene material, such as pornography.
(N.C. Gen. Stat. Ann. § § 14-190.1, 14-190.5, 14-190.7.)
It is also a crime in North Carolina to disseminate to a child under the age of 18 any material that is harmful to minors. Any depiction of nudity or sexual activity could be considered harmful to a minor. So, an adult who sends a sexual self-portrait to a child could be prosecuted under this law, or for disseminating obscenity to a minor, or for both crimes.
(N.C. Gen. Stat. Ann. § § 14-190.13, 14-190.15.)
Punishment in North Carolina varies based on the class of the offense, the defendant’s prior criminal record (if any), and the facts of the particular crime. In addition to imprisonment, the court may also impose a fine in any amount it deems appropriate.
Possession of child pornography is a Class H felony, punishable by four to 25 months’ imprisonment. Recording or distributing child pornography is a Class E felony, which can result in a sentence of 15 to 63 months in prison. Encouraging a child to make pornography is a Class C felony, punishable by 44 to 182 months in prison. Disseminating obscene material to a child under the age of 16 is a Class I felony, punishable by three to 12 months in prison. Disseminating material that is harmful to minors and making obscene photographs are Class 1 misdemeanors, punishable by up to 120 days in jail.
(N.C. Gen. Stat. Ann. § § 14-190.5, 14-190.7, 14-190.15, 14-190.16, 14-190.17A, 14-190.17.)
People who are convicted of child pornography are required to register as sex offenders under North Carolina's laws. A person who is required to register as a sex offender and fails to do so can be convicted of a felony.
(N.C. Gen. Stat. Ann. § § 14-208.6, 14-208.7.)
A conviction for child pornography or a similar crime can have serious consequences. If you or your child is charged with a crime as a result of teen sexting, you should contact a North Carolina criminal defense attorney as soon as possible. An attorney can tell you what to expect in court based on the facts of your case and the assigned judge and prosecutor. An attorney can help you navigate the criminal justice system so that you can obtain the best possible outcome under the circumstances.