Sexting is the sending of nude or sexually explicit images by cell phone, smartphone, or other electronic devices. While the private and noncommercial sharing of nude images between adults isn't necessarily illegal, teenagers in Oregon who share nude or sexual images of minors (younger than 18) may be prosecuted under the state's child pornography laws.
Teens often believe that consensual sexting isn't a crime. But that’s not how Oregon's law perceives it. Creating, sharing, or possessing sexually explicit images of a minor can result in felony penalties and may require sex offender registration.
Under Oregon’s law, it’s a crime to:
A minor is anyone younger than 18. “Sexually explicit conduct” includes actual or simulated sexual intercourse, masturbation, or lewd exhibition of sexual or other intimate parts.
Both adults and minors can be prosecuted under these laws. And because the law doesn’t require images to be of another minor, taking or sexting sexually explicit selfies count as crimes. So a 15-year-old who convinces his 16-year-old girlfriend to send him a nude selfie could be prosecuted for possession of the image and for persuading the girlfriend to take the selfie. And, technically, the girlfriend could be charged with creating and sharing the nude selfie.
(Or. Rev. Stat. §§ 163.665 to 163.689 (2020).)
Possession of an image depicting sexually explicit conduct of a minor falls under the crime of “encouraging child sexual abuse in the second or third degree.” For a conviction, a person faces either a class A misdemeanor (punishable by up to one year in jail and a $6,250 fine) or a class C felony (punishable by up to five years in prison and a $125,000 fine), depending on the circumstances involved.
Another statute makes it a class B felony to possess sexually explicit images of minors if the person uses the image to persuade a child to participate in sexually explicit conduct. A class B felony carries a maximum 10-year prison sentence and a $250,000 fine.
A person who knowingly creates or shares a sexually explicit image of a minor commits a class B felony for “encouraging child sexual abuse in the first degree.” A class B felony carries a maximum 10-year prison sentence and a $250,000 fine.
Oregon reserves the harshest penalty—a class A felony—for acts that involve persuading or coercing a minor to participate or engage in sexually explicit conduct for purposes of observing or recording the conduct. A person convicted of a class A felony faces a 20-year prison sentence and a $375,000 fine. The mandatory minimum sentence for this crime is 70 months in prison. Enhanced penalties apply if a person has multiple convictions for this or any other offense considered a "major felony sex crime."
As originally intended, this statute penalizes an offender who preys on children by coercing them to engage in sexual conduct so the offender can observe. But it also covers the situation where a teenage defendant convinces his girlfriends to send him nude and sexually explicit selfies. An Oregon court highlighted this harsh reality in State v. Carey-Martin, 293 Or. App. 611 (2018), a case involving teen sexting.
Oregon teen sexting case. In Carey-Martin, the appellate court reviewed a 25-year mandatory prison sentence handed down by a lower court in a case involving teenage sexting. The defendant had been convicted on multiple counts of using a minor in a display of sexually explicit conduct, based on his actions in convincing several younger girlfriends to send him nude selfies. His convictions were considered "major felony sex crimes" under a sentencing enhancement provision enacted by state voters. The enhancement triggered the mandatory minimum 25-year sentence. While the appellate court agreed that sexting could be harmful, it held that the ballot measure intended to reach a small group of the worst sexual offenders, not the teen sexting conduct present in this case. The court reversed the mandatory minimum sentence but that didn't reverse the underlying convictions.
(Or. Rev. Stat. §§ 137.690; 137.707; 161.605 to 161.635; 163.665 to 163.689 (2020).)
Minors younger than 18 fall under the jurisdiction of the juvenile court. Juvenile court judges generally have more discretion than adult court judges when it comes to handing out punishments. The juvenile justice process focuses on rehabilitating the minor. And to that end, the judge may order the child to perform community service, attend counseling, or be supervised by a juvenile counselor, among other dispositions. A juvenile who is tried and found guilty receives an adjudication of delinquency rather than a conviction.
Teenagers who are 18 or 19 automatically fall under the jurisdiction of adult court. And, in certain cases, the judge can transfer a minor to adult court to face adult penalties. Oregon permits youth age 15 and older to be treated as adults if the youth faces charges for a class A or B felony. (Or. Rev. Stat. § 419C.349 (2020).)
An adult or minor treated as an adult must register as a sex offender if convicted of any of the felonies listed above. For a minor adjudicated delinquent in juvenile court, the court must conduct a sex offender determination hearing to decide whether the minor must register. (Or. Rev. Stat. §§ 163A.005, 163A.025, 163.030 (2020).)
If you or your child is charged with a crime as a result of teen sexting, you should contact an Oregon criminal defense attorney. A conviction for child pornography or a similar crime can have serious consequences. An experienced criminal defense attorney can provide you with appropriate legal advice and inform you of the potential consequences, including whether juvenile defendants may be required to register as sex offenders.