Sexting is the taking, sending, or receiving of nude or sexual photos or videos by electronic means, whether through a text message, social media, or email. When teenagers are involved, sexting poses a thorny policy problem. Taking or sharing nude photos of children can result in convictions for child pornography and other serious crimes. But what if the person taking or sending that photo is a child?
Child pornography laws were originally enacted to protect kids from sexual predators (not necessarily from other kids) and have harsh penalties and repercussions. Some states have addressed the issue of teen sexting by providing reduced penalties for sexting by or between minors. Other states, like New York, created 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 (sealed), he did spend time in jail.
New York created a diversion program that may be used instead of criminal prosecution for teens or young adults involved in sexting. Successful completion of a diversion program often allows a person to avoid prosecution and a record. If the person doesn't complete the program, the criminal or juvenile proceeding can move forward.
A person charged with an offense involving cyberbullying or disseminating (sharing) obscene or nude images of minors may be eligible for New York's diversion program. To participate, both the person who sent the image and the person who received it must be younger than 20 and not more than five years apart in age. Instead of continuing the criminal prosecution, the court may divert the case and order the individual to participate in an education program. The education program focuses on the consequences (both legal and nonlegal) of sharing suggestive or abusive materials by computer or online.
If an individual does not qualify for or successfully complete diversion, the person could face charges for child pornography or disseminating indecent materials to a minor.
(N.Y. Penal Law § 60.37; N.Y. Soc. Serv. Law § 458-L (2019).)
New York makes it a crime to create or share an image or video depicting "sexual conduct" by a child younger than 17 (including a selfie). Knowing possession is also a crime but applies to depictions of a child younger than 16. "Sexual conduct" includes actual or simulated sexual intercourse, sexual acts, and lewd exhibition of the genitals.
Under this law, 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 possessing child pornography.
Penalties. A person who creates or shares images of child pornography commits a class D felony, which carries a maximum prison sentence of seven years. If the person encouraged the minor to engage in a sexual performance, the crime becomes a class C felony, and the maximum penalty increases to 15 years. Knowing possession of child pornography is a class E felony and carries a maximum punishment of four years' imprisonment. In addition to prison time, a person convicted of any of these crimes may be sentenced to pay a fine of up to $5,000.
(N.Y. Penal Law §§ 70.00, 80.00, 263.00 to .16 (2019).)
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.
Penalties. 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. A class E felony carries a maximum four-year prison sentence, and the maximum sentence for a class D felony is seven years. Both carry potential fines of up to $5,000.
(N.Y. Penal Law §§ 70.00, 80.00, 235.20 to .22 (2019).)
After the implementation of New York's Raise the Age legislation (completed in 2019), most minors (under the age of 18) will have their cases heard in family, rather than adult criminal, court. Family court judges have the ability to order age-appropriate intervention and treatment for offenders. Cases that go through family court do not result in a criminal record.
Juvenile delinquents and adolescent offenders. Minors age 7 to 17 who commit offenses are considered juvenile delinquents in New York. Family Court hears all delinquency cases involving minors younger than 16. If the minor was 16- or 17-years old and committed a felony, the minor is considered an adolescent offender, and the case may be heard in adult or family court. For nonviolent felonies, most adolescent offender cases will end up back in the family court.
Youthful offender status. For a 16- or 17-year old whose case remains in adult court, the court may decide to grant the minor "Youthful Offender" status, which allows a reduced sentence, vacates the adult conviction, and provides for all records to be sealed as confidential.
(N.Y. Crim. Proc. Law art. 720; N.Y. Fam. Ct. Act art. 3 (2019).)
Sex offender registration in New York applies only to individuals who are convicted of a sex offense. Any minor who goes through family court or receives youthful offender status in adult court does not receive a "conviction," and, for that reason, does not have to register. Adults convicted of child pornography or disseminating indecent materials to minors are required to register.
(N.Y. Correct. Law § 168-A (2019).)
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 or your child is charged with any offense 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.