Last week, a local news outlet reported that the 17-year-old quarterback of a Cumberland County high school was benched when school officials learned he was under investigation for allegedly sending “sexually explicit” photos of himself to his 16-year-old girlfriend. According to the report, officers took the teenager’s phone while investigating another incident and discovered photos of himself and his girlfriend on the phone. Now, both the teenager and his girlfriend are facing charges for “sexting” in what appears to have been a consensual exchange of nude photos between two teens in a dating relationship. Judging by the string of harsh comments to this report (which use various derogatory words to describe the charges), many people are outraged that such behavior, while improper, is a crime. Instead, they suggest that the behavior is a discipline issue that should be privately addressed by parents at home. In response to these concerns, this post examines the criminal laws in NC that possibly cover sexting and discusses their application to minors. Continue reading
Tag Archives: obscenity
Lawyers Weekly ran a brief article a couple of months ago about the above question. The article is here, behind a paywall. What follows is my own analysis of the issue.
Obscenity. The first issue, and the only one addressed by Lawyers’ Weekly, is whether making pornographic movies would violate the obscenity statutes. Specifically, G.S. 14-190.5 makes it a misdemeanor knowingly to “[p]hotograph [oneself] or any other person, for purposes of preparing an obscene film . . . for the purpose of dissemination” or knowingly to “[m]odel[], pose[], act[], or otherwise assist[] in the preparation of any obscene film . . . for the purpose of dissemination.”
At first glance, that might seem to cover the production of pornography, but Lawyers’ Weekly quoted several lawyers, most of whom waffled on the question. The waffling was entirely justified, because G.S. 14-190.1 defines material as obscene only if it depicts sexual conduct in a “prurient” and “patently offensive way” that “lacks serious literary, artistic, political, or scientific value.” Those terms are incredibly vague, but, of course, are constitutionally required. Miller v. California, 413 U.S. 15 (1973) (establishing the boundaries of obscenity for purposes of the First Amendment). Courts have often found pornographic material to fall outside the definition of obscenity, so at least some pornography probably could be produced in North Carolina without running afoul of the obscenity laws.
Prostitution. But perhaps there is another way to approach the issue. Could producing pornography involve a violation of the prostitution laws? Under G.S. 14-203, prostitution includes having sex or performing any sexual act “for the purpose of sexual arousal or gratification for any money or other consideration,” and there’s a reasonable argument that the people depicted in a pornographic video are doing just that.
Case law from other states suggests that the argument isn’t a slam dunk, though. The best-known case in this area is People v. Freeman, 46 Cal.3d 419 (Cal. 1988), where the Supreme Court of California reversed the conviction of a pornography producer under the state’s pandering for prostitution laws. The court found no evidence that the producer paid the actors for the purpose of sexual arousal or gratification. Essentially, the purpose was making money, and any sexual arousal or gratification was incidental. That strikes me as debatable. If I hire a company to trick out a food truck for my planned mobile donut business, most people would say that I paid the company for the purpose of building a truck, even if my ultimate objective is to make money by selling donuts. And Freeman itself cites cases from other states that come to other conclusions.
Even if there were a violation of the prostitution statutes, the Freeman court continued, “the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values.” I think that’s debatable too. If the conduct depicted is otherwise criminal, the First Amendment doesn’t protect it just because it is filmed. In fact, if that were the law, couldn’t a prostitute operate legally simply by being her own “director,” recording the proceedings and giving the recording to the customer?
The bottom line is more waffling. Charging those involved in producing pornography with violating the prostitution laws is a possibility but would raise legal issues. Readers, what do you think of this approach?
Further reading, no pictures. A Rutgers law professor argues that making pornography is protected by the First Amendment and doesn’t constitute prostitution here. Slate asserts here that “[p]orn stars are paid to act,” not to have sex. Also perhaps worth a look are Tonya R. Noldon, Note, Challenging First Amendment Protection of Adult Films with the Use of Prostitution Statutes, 3 Va. Sports and Ent. L.J. 310 (2004), and Jason Shachner, Note, Unwrapped, 24 Health Matrix 345 (2014) (stating that only California and New Hampshire clearly protect the right to produce pornography).
The News and Observer has had several interesting criminal justice articles over the past few days — including one about the great potted plant caper, available here: http://www.newsobserver.com/2932/story/1394388.html — but the one that struck me the most was this one, about “sexting”: http://www.newsobserver.com/1595/story/1393616.html.
Apparently, posting naked pictures of oneself on Myspace is soooooooo 2008. Kids who are really up-to-date simply snap pornographic pictures of themselves using their cell phones’ cameras, and then send the pictures out via text message, hence, “sexting.” (Former Detroit mayor Kwame Kilpatrick would be proud.) According to the article, sometimes “sexting” is meant to be flirtatious, and sometimes it is meant to harrass, but either way it is getting increasing attention from the police. One boy in Indiana has been charged with distributing obscenity for sending a photograph of his gentials to several female classmates, and another boy has been charged with a child pornography offense based on similar conduct. In Pennsylvania, three girls who sent racy pictures of themselves, and four boys who received them, were charged with child pornography offenses, though most have pled guilty to lesser charges. As you might imagine, there is a heated debate about whether criminal prosecutions are an appropriate response to “sexting,” with some arguing that a strong message needs to be sent to children, and others arguing that this type of conduct is best addressed by the kids, their parents, and perhaps their schools.
I am sure that if kids in Indiana and Pennsylvania are doing this, then kids in North Carolina are, too. Does anyone know of any cases like this? If so, what were the charges? There seem to be several possibilities, including dissemination of obscenity, G.S. 14-190.1, and preparation of obscene photographs, G.S. 14-190.5. Perhaps one could even charge first-degree sexual exploitation of a minor, G.S. 14-190.16, a Class C felony that takes place when one “[u]ses, employs, induces . . . or facilitates a minor to engage in . . . sexual activity for . . . the purpose of producing material that contains a visual representation depicting this activity.” “Sexual activity” includes the lascivious exhibition of genitals, so at least some “sexting” would be covered if the statute allows one to be prosecuted for “using” oneself to produce the prohibited material.
We live in a world where just about anything can be distributed to just about anyone instantaneously. This blog is one piece of that world, and “sexting” is another. Presumably, the criminal justice issues surrounding digital distribution will continue to get thornier, and more frequent, as the relentless march of technology continues.
