“Sexting” is the sending of nude or sexual photos by electronic means or devices, such as a text message. While some states have enacted laws specifically aimed at teen sexting, Minnesota has not, and although most people agree that teens should not be subject to harsh criminal punishment based on what is generally adolescent foolishness, teens in Minnesota who engage in sexting can be prosecuted and punished for serious crimes. Without specific legislation, sexting is usually prosecuted under child pornography laws, which are intended to severely punish adults who exploit children, and have significant and lasting consequences.
Sexting is believed to be common among teenagers (there are estimates that as many as one in five teens have sent or received nude or suggestive images), but sexting is illegal if the person depicted is younger than 18. In contrast, the consensual, non-commercial, and private sending of sexually explicit photos of adults to adults is generally not illegal.
For more information on sexting in general, see Teen Sexting.
Sexting can have serious consequences, including criminal charges and punishment, sex offender registration, humiliation if the photos are subsequently distributed, educational or employment problems that can last long into the future, and, in the most severe cases, physical and emotional harm. However, sexting has proved challenging for parents, courts, and schools to address. Should a child who sends a nude image of herself to a boyfriend be criminally charged? Should the boyfriend suffer criminal charges if he is a child himself?
Under Minnesota’s laws, the sending and receiving of nude and suggestive photos or videos of teenagers can be prosecuted as child pornography. It is a crime in Minnesota to make or direct a child younger than 18 to participate in the making of any sexually explicit or nude and suggestive photograph, video, or recording. It is also a crime to possess or distribute sexually explicit or nude and suggestive photos or videos of children. For example, a person who takes a topless photo of a teenage friend could be prosecuted for making child pornography. If the friend then sends the photo to five classmates, each classmate could be convicted of possession of child pornography. (Minn. Stat. § § 617.246, 617.247.)
For more information on related issues, see Child Enticement Laws in Minnesota.
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 not a defense to a charge of child pornography that the child consented to the activity. So, even if a 14-year-old girl agreed to pose for a nude photo and send it to a friend, or sent a photo without the friend requesting it, the friend could still be prosecuted for child pornography. (Minn. Stat. § § 617.246, 617.247.)
Online harassment and bullying have become huge problems as more and more teens have access to computers and mobile phones. Photos and messages can easily be made public and, once on the Internet, be difficult or impossible to remove. Students can also use social media or electronic communications to harass others. 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 ten years in prison, a fine of up to $20,000, or both. For second and subsequent convictions of child pornography, the fine can reach as high as $40,000. Possession of child pornography is punishable by five years in prison and a fine of not more than $5,000. Subsequent convictions are punished more severely. Distributing child pornography is punishable by seven years’ imprisonment and a fine of not more than $10,000. (Minn. Stat. § § 617.246, 617.247.)
People who are convicted of crimes related to child pornography are required to register as sex offenders under Minnesota law. Sex offenders must provide police with their names, addresses, and photos and the information may be made available to the public, making it difficult or impossible for the offender to obtain work or educational opportunities. (Minn. Stat. § 243.166.)
If you are or your child is charged with child pornography or any other crime as a result of sexting, you should talk to a Minnesota criminal defense attorney immediately. 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 protect your rights.