Federal and state child pornography laws prohibit the production, distribution, and possession of sexually explicit content involving minors. These laws cause minors to be prosecuted for taking, sending, and receiving sexually explicit photographs and videos. This includes sexting.
Sexting is a common practice among teens. A 2014 study on sexting and sexual behavior, published in Pediatrics, the journal of the American Academy of Pediatrics, found that out of 422 students, 22 percent had engaged in sexting. Many states prosecute minors engaged in sexting under general child pornography statutes. However, a number of states have enacted legislation to provide less severe punishments for teens engaged in sexting who otherwise could be charged with possession or distribution of child pornography.
In September 2015, two North Carolina 16-year-olds, a boyfriend and girlfriend, were arrested and charged with multiple felony counts of sexual exploitation of a minor after nude photos of each teen were found on a cell phone belonging to one of them. Both teens were charged as adults. One faced up to ten years in prison, if convicted, while the other faced up to four. Both would have had to register as sex offenders. Both teens ultimately agreed to plea bargains that reduced their charges to misdemeanors. After serving a year on probation, all charges were dismissed.
Had this incident occurred in Georgia, the teens would not have faced felony charges as Georgia laws make sexting a misdemeanor for both minors involved if they are at least 14, but not older than 18 years of age. This only applies if the content was willingly created, sent, and received. The statute does not protect juveniles who distribute images to harass, intimidate, or embarrass another minor.
Arizona, Florida, and Arkansas treat underage sexting as a misdemeanor rather than a felony for a first-time offense. These states also provide an affirmative defense if the sexually explicit content was unsolicited, not distributed, and reasonable efforts were made to delete the image or video and to report it to the authorities. Arkansas also offers an affirmative defense if a minor creates an image of himself or herself and does not distribute it.
Nebraska provides an affirmative defense for teen sexting if: the photograph or video portrays a minor who is 15 years of age or older, it was knowingly and voluntarily created and provided by the minor depicted, it contains only one minor, and the minor was not coerced to create or send the photograph or video.
Illinois requires minors engaged in sexting to obtain counseling or other services and to perform community service. New Jersey has created a diversion program for minors who are criminally charged with sexting. West Virginia allows the court's discretion in deciding whether to require sex offender registration.
Iowa also offers a diversion program. In March 2016, as many as 25 students at a high school in Iowa were discovered to be sharing pictures in which students were seminude, nude, or nude with emojis covering their private parts after two students attempted to print some of the photos at the school library. The students were all offered a diversion program as an alternative to facing juvenile charges, which require sex offender registration, if found delinquent. This particular diversion program included a course on the dangers of sexting.
States such as Mississippi and Massachusetts prosecute minors for sexting under their general child pornography laws. The child pornography charges in Massachusetts are all felonies and there are no lesser charges that apply to this conduct. Both possession and dissemination of photographs of minors that depict lewd content including genitals, buttocks, breasts, or minors engaged in sexual acts can be prosecuted under general law in adult criminal courts. This applies even when minors possess or disseminate photographs of themselves or a significant other. It is also a felony in Massachusetts to knowingly encourage a minor to pose nude or seminude for the purpose of photographing them even when both parties are minors.
Given the realities of being a teen in the digital age, many states are still struggling to reconcile child pornography laws. The divergent approaches are also reflected in how teens charged with sexting are prosecuted—as juveniles or as adults. When states decide to treat teen sexters as juveniles, their experience is more likely to be rehabilitative in nature. If the case goes to trial, the sexter will present a defense to a judge and the focus will be on the facts. If this is the teen’s first offense, it is highly likely that the teen will receive probation if convicted. Common conditions of probation imposed on teens convicted of sex-related offenses include sex offender courses, a letter of apology to the victim or to the parents of the convicted, and community service. In more serious cases, convicted teens may be sent to secured juvenile detention centers.
On the other hand, when states apply general child pornography laws to teen sexters, they are treated as adults every step of the way. If they do not accept a plea deal and instead exercise their right to a trial, their fate is decided by a jury of their peers. The theatrics of jury trials will come into play. If convicted, the sexter faces a prison sentence of up to 20 years served in an adult facility. In addition, teens convicted as adults are required to register as sex offenders. Some states even require sex offenders to disclose their sex offender status on job applications and may even be prohibited from going to public places such as movie theaters and parks.
The transmission of child pornography is a very serious offense. There are entire multiagency task forces that are dedicated to preventing such activity, and these offenses should be prosecuted appropriately. However, there should not be a hard and fast approach when such activity pertains to minors who transmit nude photographs of themselves. Arguably, a better approach would be for states to take each offense on a case-by-case basis. A teen who texts a requested nude selfie of himself or herself in Minnesota should not be facing prison while a teen in Florida who texts a nude photograph of his girlfriend to his friend gets probation. It goes without saying that the more serious the crime, the more serious the consequences should be.