Sexting typically refers to using a cell phone to send or receive sexually explicit images. The images may be of the sender or someone else, either in the nude or engaged in sexual activity. Some states, such as Illinois, have passed laws that specifically address sexting between or among teens. Other states, such as Alabama, have not passed teen sexting laws. In these states, a person sending sexually explicit images of a teen may be charged with violating the state’s child pornography laws. In these states, a teen who is legally an adult (a 19 year-old) may face a lengthy prison sentence if convicted of a child pornography offense. Much to the dismay of many teens, although they may think that texting sexually explicit images of themselves to one another is harmless, the law treats such images as child pornography.
As noted, minors who sext messages of other minors may be charged under the state’s general child pornography laws. However, minors do get a break in some situations, in that their case may be handled in juvenile court, rather than in regular trial court. Under Alabama juvenile law, a child is someone under 18 years old; or someone under 21 years old if accused of committing a crime before the child’s 18th birthday.
(Ala. Code § 12-15-102).
Sexting is covered under several criminal statutes in Alabama law. In addition to outlawing sending electronically images of underage people engaged in sexual activity, Alabama also makes criminal the possession, production, and sale of child pornography, as well as the transmission of child pornography by means other than a cell phone or computer. The sending of any obscene material to a child, including obscene material not containing sexual images of children, is likewise illegal.
Alabama law makes it illegal to send obscene material to a child via a computer. A person commits the offense by transmitting to another person, by a computer communication system, files that contain depictions of actual or simulated nudity, sexual activity, or sadomasochistic abuse. The prosecutor must prove that the defendant did so for the purpose of engaging in sexual activity with the child.
A person can also be convicted of sending obscene materials to a child via computer even where no child is involved, but the person mistakenly believes the recipient to be a child. Therefore, a person who sends obscene materials to an undercover police officer posing as a child online may be prosecuted and convicted of the offense if the defendant sent the materials for the purpose of having sex with the child, even though the child did not exist.
The crime of sending obscene material to a child by computer is a Class B felony. Class B felonies are punishable by a maximum fine of $30,000 and up to 20 years in prison.
(Ala. Code § § 13A-5-6, 13A-5-11, 13A-12-190, 13A-6-111; Baney v. State, 42 So.3d 170 (Ala.Crim.App. 2009)).
The public display or dissemination, including by means other than a cell phone or computer, of materials depicting a person under 17 years old engaged in obscene acts is also illegal. A conviction for this offense is a Class B felony. Dissemination is defined as the selling, lending, or showing in exchange for money, or the offer or agreement to sell, lend, or show for money.
Alabama also outlaws both possession and possession with the intent to disseminate materials depicting persons under 17 years old engaging in obscene behavior.
Proving the Case
To prove that a defendant had the intent to distribute the obscene materials, the prosecutor may introduce direct evidence, circumstantial evidence, or both. A defendant’s statement to a witness of plans to email to others the obscene images constitutes direct evidence of the defendant’s intent to distribute. Unlike direct evidence, circumstantial evidence does not directly prove a fact but instead requires the jury or judge to draw inferences from the evidence. For example, a defendant’s possession of sealed and stamped envelopes containing child pornography is circumstantial evidence that the defendant intended to distribute the child pornography. A jury may infer from such evidence that the defendant planned to mail the obscene material and thus is guilty of possession with the intent to distribute obscene images of children.
A prosecutor may be able to prove that the defendant intended to distribute child pornography even in in the absence of incriminating statements or circumstantial evidence of intent. Under Alabama law, possession of three or more copies of the same visual depiction of child pornography is considered proof of the intent to distribute.
Alabama classifies possession of child pornography with the intent to distribute as a Class B felony.
Possessing child pornography without having the intent to distribute the materials is punished as a Class C felony. A defendant convicted of a Class C felony faces a maximum fine of $15,000 and up to 10 years in prison.
(Ala. Code § § 13A-5-6, 13A-5-11, 13A-12-191; 13A-12-192)
Alabama also makes it a crime to photograph, film, record, or otherwise produce obscene material that visually depicts a person under 17 years old engaging in sexual conduct, nudity, or sadomasochistic abuse. A conviction for this offense is a Class A felony, which can be punished with a fine of up to $60,000 and a maximum prison sentence of 99 years.
(Ala. Code § § 13A-5-11, 13A-12-197).
Alabama requires a person convicted of a criminal sex offense to register with the state sex offender registry upon release from incarceration. Defendants convicted of possessing, producing, or transmitting (including sexting) images of an underage person engaging in sexual activity must register, as must defendants who plead guilty ornolo contendere (no contest) to any of these offenses.
(Ala. Code § § 15-20-21, 15-20-22).
If you are accused of a crime in Alabama involving sexting, you should immediately speak with an attorney. A conviction for possessing, producing, or transmitting images of an underage person engaged in sexual activity can result in a lengthy prison sentence as well as a substantial fine and mandatory sex offender registration. An attorney will evaluate your case and discuss strengths and weaknesses of the case against you. An attorney will provide invaluable guidance throughout your case, all while ensuring the protection of your rights and liberty.