Sexting—the taking, sending, and receiving of nude or sexual photos or videos by electronic means, such as a text message—poses a thorny policy problem when teenagers are involved. Sharing nude photos of children can result in convictions for child pornography and other serious crimes. But what if the sharers are children, too? Child pornography laws were enacted to protect kids from sexual predators, not other kids. Some states, like New York, have diversion programs that allow teenagers who are involved in sexting to attend educational programs instead of facing tough criminal penalties.
Diversion programs like the one in New York give kids a break. For example, before New York’s diversion law was enacted in 2012, a 16-year-old boy in Webster, New York, requested that a 15-year-old girl send him a nude photo. After she did, he forwarded the photo to his friends. The boy was charged with distributing and possessing child pornography, both felonies that can result in a prison sentence and sex offender registration. Although he ultimately pleaded guilty to a misdemeanor and his record will be expunged, he did spend time in jail.
Sexting has many consequences beyond the fact that it is a crime. Schools have disciplined and suspended students involved in sexting. Recipients can easily share images, or make them public online, causing severe distress and humiliation to the child pictured. Bullying and harassment can also result. Once photos are on the Internet, they can be difficult to remove, a teen’s reputation can be damaged, and educational and employment opportunities can be lost.
Under New York law, it's a crime to persuade someone younger than 17 to engage in the making of a sexual or nude image, or to distribute or disseminate child pornography featuring someone younger than 17 (called promoting a sexual performance by a child). It's also a crime to possess a nude or sexual depiction of someone younger than 16. For example, a teenager who shares a nude photo of a 14-year-old girl with his friends could be convicted for possessing and distributing child pornography. The friends could also be convicted of possession of child pornography.
Like some other states, New York has inconsistent child pornography laws: It's not a crime to possess child pornography featuring a 16-year-old, but making or distributing such pornography is illegal. (N.Y. Pen. Law § § 263.00, 263.05, 263.10, 263.11, 263.15, 263.16.)
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's also a crime in New York to use a computer network such as the Internet to send a child younger than 17 any obscene material or engage in sexually explicit communication with such a child. For example, a high school senior who sends a freshman a photo of his or her genitals could be convicted under this law. Sharing obscene material with a child is punished more severely if the sender asks the child to engage in sexual activity. (N.Y. Pen. Law § § 235.20, 235.21, 235.22.)
As mentioned above, New York has a diversion program that may be used in lieu of criminal prosecution. When a teenager has been charged with an offense arising from or related to disseminating obscene or nude images (or cyberbullying), the court may, instead of continuing the criminal prosecution, order the teen to participate in an education program. Both the person who sent the image and the person who received it must be younger than 20 and they cannot be more than five years apart. The education program focuses on the consequences (both legal and non-legal) of sharing suggestive or abusive materials by computer or online. (N.Y. Pen. Law § 60.37; N.Y. Soc. Services Law § 458-l.)
If the diversion program is not used, persuading a child to make pornography is a class C felony, punishable by up to 15 years’ imprisonment. Possessing child pornography is a class E felony, punishable by up to four years in prison. Promoting an obscene sexual performance by a child is a class D felony, punishable by up to seven years’ imprisonment. Disseminating obscene material to a minor is a class E felony, unless the defendant solicits the child to engage in sexual activity, in which case it's a class D felony. Additionally, in New York, a felony conviction can result in a fine of up to $5,000. (N.Y. Pen. Law § § 70.00, 80.00, 235.21, 235.22, 263.05, 263.10, 263.11, 263.16.)
People who are convicted of child pornography crimes and disseminating indecent materials to minors are required to register as sex offenders in New York. Sex offenders must register for at least 20 years and many are required to register for the rest of their lives. Local laws may restrict where sex offenders can live and certain jobs are not available to them. (N.Y. Cor. Law § § 168-a, 168-f.)
Being convicted of an offense related to child pornography can have serious consequences, including incarceration, a fine, and a very serious criminal record. If you are or your child is charged with any crime as a result of teen sexting, you should contact a New York criminal defense attorney. An experienced attorney can provide you with invaluable advice and protect your rights.