When Does a Selfie Become a Crime?

Posted By Law Offices of Robert M. Bernstein || 25-Feb-2016

There’s nothing new about teenagers flirting. But there is something new about the way they are doing it these days and their acts can be prosecuted as Possession, or Distribution of Child Pornography by law enforcement.

If you’re a parent to a teen, you have definitely already heard of, or been warned about the possible social dangers of sexting. But while the older generation raises an eyebrow at the practice, sexting has become quite commonplace, with polls indicating that nearly 30% of all teens have participated in sexting.

For teens, sexting has become so normalized that the social, or emotional risks may seem negligible. But what they probably don’t realize is there are very serious legal consequences. California law provides that if anyone knowingly coerces or encourages a minor under the age of 18 to be photographed sexually is in violation of child pornography laws, even if that person is a fellow minor.

When two minors exchange nude photos with one another, they are violating strict laws that explicitly forbid the production, possession, or distribution of child pornography. Other charges that have been lobbed at sexting teens in different states include invasion of privacy and sexual exploitation of a minor.

The strict and comprehensive laws regarding child pornography were created not only to target predators but to protect vulnerable children. But consider this: if a 15-year-old in Los Angeles sends a nude photo of herself to a friend, she can face a state charge of violating California Penal Code Section §311—possession, or distribution of child pornography. This is punishable by up to six years in prison. For 15-year-old high school students, that’s an incomprehensible amount of jail time that is plainly disproportionate to their youthful mistake.

Recently, one North Carolina 16-year-old boy learned all this the hard way, when a police search of his phone revealed nude photos sent to and by his girlfriend, also 16. The authorities charged him with five felonies, for taking the photos of himself and for possessing those of his girlfriend. The teen took a plea deal, avoiding ten years of prison time.

What if he had shared images sent by his girlfriend with a buddy or two? As stated above, under California law he could be facing a six year prison sentence. If he had been prosecuted pursuant to federal charges of distribution of child pornography (18 U.S. Code § 2252), the 16-year-old could have faced anywhere from 5 to 20 years in federal prison. Whether the charges are in state or federal court, they guarantee mandatory lifetime registration as a sex offender.

As problematic sexting scandals become more common, the way they are handled has become only more complicated. Often, if the activity is revealed in a school setting, there is non-criminal disciplinary action taken against students. But some districts find themselves in a bind, they are required to report such acts to the police to comply with state or federal laws.

While a push is made to educate teens about the dangers of sexting—often highlighting its emotional or social risks—it is important for them to be wary of the serious legal consequences. What seems like a victimless, if ill-advised, method of flirting to a high school student could lead them to being marked for life as a sexual predator.

Categories: Child Pornography, Sexting

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