Sexting is the sharing of suggestive or explicit photos by electronic means, usually by text message. In states such as Michigan that have no specific legislation dealing with this issue, sexting between teenagers can be prosecuted under child pornography laws, which are intended to severely punish adults who exploit children. Teens that engage in sexting can also suffer other consequences. For example, a middle school in Grand Rapids suspended four students for sharing a topless photo; included among those suspended was the student who took and texted the photo, which depicted herself.
Although reliable estimates are hard to come by, sexting is thought to be common among teenagers. (Some estimates say as many as one in five teens have sent nude or suggestive photos of themselves to others). Nonetheless, sending nude photos is illegal if the person depicted is younger than 18. In contrast, the private and non-commercial sharing of sexually explicit photos of adults between adults is not usually illegal; even if it's technically illegal under a state's obscenity law, it's not usually prosecuted.
For more information on sexting generally, see Teen Sexting.
Parents, courts, and schools have struggled to address sexting. Distribution of the pictures can result in humiliation and sexted images can fall into the hands of child predators and commercial pornographers. On the other hand, most people agree that harsh criminal laws shouldn't apply to teens engaging in adolescent foolishness.
Child pornography, also called “child sexually abusive material” under Michigan law, is any depiction, including a photograph or video, of a person younger than 18 engaged in a sex act. "Sex act" is broadly defined to include nudity and any touching of the private parts of the body.
Possession and distribution of child pornography are crimes. Under Michigan’s laws, it is a crime to create, produce, copy, or finance child pornography or to persuade or cause a child to engage in the making of child pornography. In order to be convicted of child pornography, the defendant must know or have reason to know that the child is younger than 18. For example, a 19-year-old who encourages his reluctant 16-year-old girlfriend to pose for and send a topless photo could be convicted of persuading her to make child pornography. (Mich. Comp. Laws Ann. § 750.145c.)
For more information on related issues, see Child Enticement Laws in Michigan.
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 in Michigan to distribute (or possess with intent to distribute) any obscene material. While Michigan’s obscenity law does not define the term “obscenity,” nude or suggestive photos of a child would almost certainly be considered obscene. Distribution of obscene material is a less serious crime than child pornography.(Mich. Comp. Laws Ann. § 752.365.)
As the number of teenagers with access to cell phones and social media has risen, there has also been a corresponding rise in online bullying and harassment. Insults and private messages and photos can now be quickly shared or made public. Depending on the circumstances, a person who distributes or publishes nude photos of a teenager could be charged with harassment, and students can be suspended or expelled for violating their school’s anti-bullying policy.
Making child pornography is punishable by up to 20 years in prison, a fine of not more than $100,000, or both. Distributing child pornography is punishable by up to seven years in prison, a fine of not more than $50,000, or both. Possession of child pornography is punishable by up to four years’ imprisonment, a fine of up to $10,000, or both.
Obscenity is a misdemeanor, punishable by not more than one year in jail, a fine of not more than $100,000, or both. Subsequent convictions are punished more severely and fines for subsequent convictions may reach as high as $5,000,000. (Mich. Comp. Laws Ann. § § 750.145c, 752.365.)
People who are convicted of child pornography or disseminating obscene material featuring children are required to register as sex offenders under Michigan’s law. Sex offenders must periodically provide police with their names, contact information, and photographs. Michigan makes much of this information available to the public. (Mich. Comp. Laws Ann. § § 28.722, 28.723.)
If you or your child is charged with child pornography or distributing obscene material as a result of teen sexting, you should talk to an experienced criminal defense attorney in Michigan. A conviction for any crime, but particularly for a sex crime, can have serious consequences, including years in prison or a juvenile facility, and sex offender registration. An attorney can tell you what to expect in court and how to present the strongest defense.