This month my brother, Luke Nichols and his lovely wife Becca, came to visit and during one of several interesting conversations we had he spoke of his experiences as a criminal defense attorney in the Washington D.C. area.
Through his work he's seen some of the consequences of teenagers sexting (and if you don't know what sexting is, just ask any teen) and he has volunteered time at youth centers to warn teens of the dangers they face when the law gets involved.
You may already know of the dangers this new phenomenon poses to the morality of our children and society but you ought also to know of the legal dangers children face if caught--and if they have a cell phone I can pretty much guarantee you that they've have experience in the area already.
Luke joins us as a guest poster and legal opinion on the subject and you can read more about sexting on his website at Spectrum Legal Defense.
P.S. Don't let the picture distract you--I just wanted a picture of Luke and this one of Lillian and him goofing it up and celebrating their fishing success cracks me up.
What Is Sexting?
While the moral, psychological, and religious implications of sexting deserves their own discussion, I am a criminal defense attorney and what I am qualified to tell you is 1) that sexting is rampant and 2) sexting can land a child in prison for years.
Sexting, or sexual texting, is an epidemic that involves using the internet and usually camera phones to share sexually explicit photos, text, and video. While not all youths are willful participants in this seedy conduct, the popularity of camera phones now means that nearly all young people are exposed to sexting whether they like it or not.
Legally speaking, the problem is that sexting is the wholesale production and distribution of child pornography within our homes and schools. When a fourteen year-old boy takes picture of his thirteen year-old girlfriend’s breast he has committed felony production of child pornography and the separate felony of possession of child pornography. If that young man or any of his friends display, copy, or share that image then they are guilty of a third felony, distribution of child pornography. If that boy or anyone else requested or enticed the minor to expose her breasts he may also be guilty of aggravated sexual battery or felony child molestation among other crimes.
While each state is different, there are few places in the US were child pornography and other sex crimes against minors are not ruthlessly punished and prosecuted. Parents should also keep in mind that because the internet crosses state lines child pornography is frequently prosecuted in federal courts as a federal crime.
In some states, the maximum punishment for just production of child pornography is 30 years in an adult prison facility. What is more onerous, in many states each photo can result in a separate charge, so that a young man or woman who takes multiple photos will be charged with multiple counts of production, possession, and distribution.
One of my more recent juvenile clients was caught with twelve pictures of his naked seventeen year-old girlfriend. He was charged will twelve counts of possession of child pornography and faces up to sixty years in jail.
So How Big of a Deal Is It?
The mistake that most adults make is that they do not realize how serious these crimes are. The first sexting case I ever worked on involved a seventeen year-old boy who used his camera phone to take a video of his naked thirteen year little brother and friend during a hazing prank. Even though the boys willingly went along with the hazing and even though my client was not accused of intending anything sexual (just humiliation) my client was charged with two counts of aggravated sexual battery for enticing two minors to take their clothes off, one count of production of child pornography, one count of possession, and one count of distribution after he showed the video to his friends.
Those charges allowed the court to try the young man as an adult and carried a maximum penalty of 104 years in prison and a mandatory minimum of 15 years in prison. The boy was fortunately only found guilty of some of the charges and was sentenced to 3 years in prison.
But My Kid Doesn't Sext . . .
What I find so disturbing about sexting is just how common it is, yet the only adults who seem to understand this are the police and prosecutors. One recent trial for possession of child pornography involved a young man in his late teens. The police were chatting with this young man when the officers asked to see his cell phone. The officers searched the phone and discovered a naked photo of the teen’s seventeen year-old girlfriend. When I asked the officer why he searched his phone the officer looked at me like I was an idiot and said “All teenagers have naked photos of their girlfriends on their cell phone."
While the officer’s statement is somewhat of an overstatement, I have since discovered that he was not far off the mark. In the last year, I have since started speaking with high school students and teen intervention groups about the dangers of sexting and I have consistently found the practice of sexting utterly unchecked by adults. Every time I speak at a school about sexting, without fail many of the young men laugh or brag about the practice openly in front of their teachers or supervisors and almost none of the youth are unfamiliar with it. Getting a naked photo of a girl is simply “first base” for too many young men now days.
While the girls’ attitudes about sexting are not usually so cocky or jovial they are equally as exposed to the practice. In the short time I have been speaking to youths I have heard too many accounts of young girls being forcibly exposed and photographed by young men with camera phones at school. Often, these girls have said nothing about these attacks because, like the young men, they think that shoving a camera phone up a girl’s skirt and posting it on the web is a mean prank not a felony.
Many of the youths I speak to are good kids who feel no attraction to sexting, but they are still exposed to it. With a few clicks their friends and often distant acquaintances send them dirty photos. Naked photos of fellow class mates are now the new medium for youths to boast about their conquests or to humiliate and shame one another. While certain girls in my high school did things in private for attention, similar young women of this generation can garnish the wrong kind of attention from hundreds of boys with a camera phone and 30 seconds.
Few teenagers today have not been exposed to child pornography via sexting, and what they don’t realize is that the simple possession of those materials is a felony regardless of whether they approve of or despise the practice.
Sexting Is a Loaded Gun or a Pound of Cocaine
Legally speaking, child pornography is no different than guns and drugs. If you are caught with it, it doesn’t matter what your intentions were, you are going to jail. Additionally, most people do not realize that putting child pornography in your computer’s trash bin does not solve the problem. If there is any way you can retrieve the pornographic photo after you have deleted it, then you are still in possession.
Many courts have taken this to extremes and will find possession even if retrieving the images requires a computer expert. A common example includes the temporary files created on your computer when you view images on the internet. The police catch online pedophiles by monitoring sites which contain child pornography. They accumulate data on who has viewed the photos and when they finally shut down the site they round up all the visitors’ computers and have computer forensic scientist retrieve the temporary files created by surfing the internet. Many of the social networking sites and chat rooms popular with youth contain indecent photos of minors, and the law does not distinguish between an internet user who ogles young girls and one who was is simply reading their friend’s online profile. If it is on your computer, you are in trouble.
When teachers ask me what they should do when (not if) they find child pornography on their students' phones I tell them to treat it like a loaded gun or a kilo of cocaine. Don’t handle it. Don’t examine it. Just call security or the police immediately! No matter what happens, never ever give a child their phone or computer back if you know there is any pornography on it. Giving pornography (not just child pornography) to a minor is a serious crime and I am not aware of any law that makes exceptions for giving a kid back their own pictures.
It Can Come Back to Haunt Them
Inevitably, when I discuss sexting with youths, there are those who balk at my cautions because they don’t think they will ever get in trouble. Everyone around them is doing it so why worry?
What they don’t realize is that sexting is a new problem. Adults are learning and each year the numbers of children arrested grow as more people report incidents to law enforcement. Also, in many state there is no statute of limitation for these types of felonies. This means that the government can bring charges against a person 20 years after the crime was committed if they want to. Many child molesters are prosecuted only after their victims are grown and come forward as adults. Likewise, a young man who coerces a young woman to expose herself may not get reported to police until the girl has grown and has become old enough to know that what was done to her was illegal.
I tell young men that when they take dirty photos of a girl, that girl has complete control over their fate. If she ever gets angry and wants to hurt them all she has to do pick up the phone and call the police.
However, the more common way youths are being arrested is when their dirty photos are passed around until a responsible adult sees the pictures and calls the police. All the police have to do is threaten the last sender with felony possession and distribution of child pornography unless they tell them where they got the photos. Getting teenagers and parents to talk is easy when children are facing up to 10-20 years in prison.
Some police are also searching phones as a regular part of criminal investigations. One of my young clients was falsely accused of assault and battery after defending himself from a gang attack. When he was arrested the police inventoried his possession and discovered multiple dirty photos of his underage girlfriend on his cell phone. The police quickly realized that he was the real victim and dropped the assault and battery charges; however, they went forward with over ten counts of felony possession of child pornography.
Is There Any Protection?
Obviously sexting is dangerous, but the real question is: what can be done to protect children? To parents, I would like to point out the vast majority of the sexting cases involve camera phones, and I cannot think of a reason that a sixteen year old needs a camera on their phone.
Additionally, I think half of my clients are in trouble because of whom they associate with. Know your children’s online and real world friends. There are only two ways I know of to find out who your child associates with online: either you monitor their online activity or you ask them (I recommend both).
Finally, there is no substitute for talking openly and frankly to your children about the consequences of sexting. And while I can only address the legal ramifications, it is up to parents to weigh in on the moral, emotional, and religious implications of online sexual activity.
And if all of that fails, liquidate their college fund and hire a good attorney.
Sponsored by Sorella Jewelry Studio for fine personalized jewelry.