Teen “Sexting” Is a Problem, But Is It a Crime?

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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.

Sexting, which typically involves sending sexually explicit photos or messages via cell phone, is a recently new phenomenon that emerged with the increased use of cell phone cameras by teens. Despite growing attention to the issue in NC (see Jeff Welty’s 2009 blog post on sexting), lawmakers have not yet enacted a law that specifically addresses teen sexting. As a result, teens who engage in sexting are often charged with violating laws that prohibit child pornography and obscenity, which were designed to punish adult predators who sexually victimize children.

The quarterback in the Cumberland County case, for example, is charged with sexual exploitation of a minor, a felony which requires mandatory sex offender registration upon conviction. See G.S. 14-208.6(5) (defining sexual exploitation of a minor as a “sexually violent offense” which requires registration under G.S. 14-208.6A). Surely, lawmakers could not have intended such a harsh consequence for a teen who sends a nude selfie to his girlfriend or vice versa. There are certainly less serious offenses that would provide appropriate consequences for the conduct without giving a 17-year-old a sentence as both a convicted felon and registered sex offender.

What Are the Options for Charging Sexting in NC?

It appears that there are three categories of criminal offenses that can possibly be used to charge minors (under the age of 18) with sexting: obscenity, disseminating material harmful to minors, and sexual exploitation of a minor.

  1. Obscenity

 

Disseminating Obscenity, G.S. 14-190.1, is a Class I felony committed by intentionally disseminating obscenity or creating, procuring, or possessing obscene material with the intent to disseminate it. Material is obscene if it includes any depiction of “sexual conduct,” which includes “lewd exhibition of uncovered genitals.” See 14-190.1(c)(2). Federal child pornography law, 18 U.S.C. 2256(2)(A)(v), similarly defines “sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area of any person.” In determining whether a visual depiction of a minor meets this definition, federal courts consider factors such as whether:  the image is focused on the child’s genitals or pubic area, the setting is sexually suggestive, and the child is fully or partially clothed, or nude. U.S. v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986). Applying this interpretation to our statute, it’s likely that “sexual conduct” includes some nude selfies that are focused on the genital area, while excluding other nude selfies.

Preparing Obscene Photographs, G.S. 14-190.5, is a Class 1 misdemeanor committed by one who models, poses for, or photographs oneself or any other person for the purpose of making an obscene film or photograph to disseminate. For example, in the Cumberland County case, both the quarterback and his girlfriend could potentially be charged under this statute for taking nude selfies for the purpose of sexting, assuming the images satisfy the definition of “obscene,” as described above.

  1. Disseminating Material Harmful to Minors

 

Disseminating Material Harmful to Minors, G.S. 14-190.15, is a Class 1 misdemeanor committed when a person knowingly presents or distributes to a child under 18 material that is harmful to minors. Material is harmful to minors if it depicts “sexually explicit nudity” or “sexual activity.” See G.S. 14-190.13 (defining “sexually explicit nudity” as the showing of “[u]ncovered, or less than opaquely covered, human genitals, pubic area, or buttocks, or the nipple . . .  of the human female breast, . . . or [c]overed human male genitals in a discernibly turgid state”). This definition appears to be broad enough to include any nude selfie that shows the genital area, and probably comes closest to covering the consensual sharing of bare naked photos between teens.

  1. Sexual Exploitation of a Minor (Child Pornography)

 

Sexual exploitation of a minor, commonly referred to as child pornography, requires a visual representation of a minor engaging in “sexual activity.” The crime is punishable in varying degrees, all of which require sex offender registration upon conviction. See G.S. 14-208.6(5), and G.S. 14-208.6A.

First-Degree Sexual Exploitation, G.S. 14-190.16, is a Class C felony committed by one who knowingly “encourages, 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, as defined by G.S. 14-190.13(5), includes any touching of the genitals “in an act of apparent sexual stimulation” or “the lascivious exhibition of the genitals or pubic area of any person.” If the Cumberland County teen induced his girlfriend to take nude photos of herself before they engaged in sexting, he could potentially be prosecuted for this Class C felony, if the photos depict sexual activity.

Second-Degree Sexual Exploitation, G.S. 14-190.17, is a Class E felony committed by one who records, photographs, duplicates, or receives material that depicts a minor engaged in sexual activity. Receiving a text message containing images of a minor engaged in sexual activity or duplicating such material would subject a minor to prosecution for this offense. The NC Court of Appeals recently held that downloading images from the Internet onto one’s computer constitutes “duplication” within the meaning of the statute. See State v. Williams, 754 S.E.2d 418 (2014). It’s unclear whether this holding would extend to downloading a copy of a photograph or video transmitted via text message.

Third-Degree Sexual Exploitation, G.S. 14-190.17A, is a Class H felony committed by mere possession of materials that depict a minor engaged in sexual activity.

Because 16 and 17-year-olds are prosecuted as adults in NC, the consequences for a minor charged with child pornography can be devastating, as illustrated by the case of the Cumberland County teen facing possible registration as a sex offender. In juvenile court, the teen would not be labeled a convicted felon nor be required to register as a sex offender, if adjudicated delinquent for sexual exploitation of a minor. Instead, the court would enter a disposition that would include appropriate consequences for the behavior, and the record of the juvenile’s adjudication would be confidential.

This case also highlights a likely unintended but harsh inconsistency in the way minors are treated by NC criminal law. The child pornography statutes define a “minor” as any individual under 18. However, 16 and 17-year olds are, simultaneously, considered adults for purposes of criminal prosecution. As a result, a minor can be criminally prosecuted for sexually exploiting him or herself.

Could this case, which is reportedly receiving national attention, potentially be the impetus for a legislative change? Should teens be criminally prosecuted for consensual sexting, and if so, are any of these charges appropriate?  Are there other possibilities that I missed? Please share your thoughts.

23 comments on “Teen “Sexting” Is a Problem, But Is It a Crime?

  1. Being a local Cumberland Co. criminal defense attorney, I am completely appalled by the charges and how law enforcement treat these sexting incidents. Even if the charges are resolved by a deferred prosecution agreement or other arrangement to obtain a dismissal, the damage is often already done. Especially when it comes to student athletes. Of course, we don’t know if a parent was pushing for the charges but, even so, I think taking the approach of charging young, boyfriend-girlfriend, consensual situation is just wrong.

    • If you’re an attorney you should know that officers are compelled by General Statutes to enforce any felony law, and only have discretion over misdemeanor offenses. In these instances law enforcement are forced to make a charge and arrest if they develop probable cause that the crime did occur, regardless of the popular consensus among citizens. Until the legislature acts to rectify these laws law enforcement will have to make these charges.

  2. Normally, this case would never have seen the light of day since the boy and girl would have done the deed, but kept it a private as their bedroom or backseat actions. How do we protect these exception to the rule cases without throwing open doors and knocking down walls that protect the young, helping one to hurt a hundred?

    The law was intended to protect minors, but here is an exception where it hurts minors by excess. How do we save one without hurting many?

    Instead of arbitrary AGE defining charges, we could try “INTENT,” but how are we to prove intent? Much of the use of sexuality explicit photos have the same intent at age 35 as age 15. Profit isn’t the prime motivator in these unwanted behaviors.

    Changing the age is a solution? While we don’t want to make laws based on the exception, we could change the protection from minors to just those under 16 (sexual concent age in NC) but that could still leave the 16yo sexting with a 15yo friend. Or, we could treat to 18 as juveniles, yet that leaves the 19yo still in high school sexting with his year younger girlfriend.

    Here, the solution to protecting the exceptional case isn’t changing the law for the general infractions, I think, but in the prosecution of the law by the investigating officer, the prosecutor, the judge and finally the jury.

    The whole capping or keeping a lid on sexual exploitation and experimentation is a challenge. Just the simple possession of such an unknown teen’s picture by an adult is a serious offense. Society has a pressure cooker holding in the steam of raging 15 year old curiosity, hormones and temptations. We all know a lot goes on regarding minors already regardless of the laws. The best we can hope for is to at least control those old enough, mature enough, to know better.

  3. I am appalled at adults who see this as a teen booboo. If either the 15 year old teen or the 17 year old ADULT had posted/sold these photo’s and humiliated the other then people would all be in up in arms. When do we hold individuals accountable for their actions…according to some adults…never! Those pictures may never be publicly exposed but already could be out there. As to the comment of consensual by the attorney…I just might be a northern retired cop but 15 year olds can’t consent. Guess the parents could buy the phone but not teach them the responsibility of having one…that is just too much to ask. Why bother prosecuting “kiddies” for anything before 18…let them run amok until that day then pounce!

    • Hi Tina. I neglected to include the girlfriend’s age in my original post (which has now been updated). She is 16-years-old, and both teens were 16 when the alleged crimes occurred. So, for purposes of NC criminal law, they are both adults who can legally consent to engage in sexual intercourse, which some people think is inconsistent with them being charged for exchanging photos.

    • Well its good that your retired since it’s folks like you who have created this disaster that is our criminal injustice system. I mean a 17 year old can’t smoke a cigarette, drink a beer , buy a gun or even a lottery ticket , and most importantly vote in an election. However we sure don’t seem to have a problem with sending off to war to die for their country or letting them die in prison. I mean we will even let them have sex and get married but take a picture having sex and we will ensure the destruction of your life by making you not just a felon but a registered sex offender. That is not in the best interests of this nation much less what is best for these children ! It’s past time that we bring some uniformity to the law in regards to age. Whatever the age is that could be decided on , should be reflective of the belief that adulthood is defined by the tranferrance from parents to progeny of complete and absolute responsibility for ones own life and actions along with all the rights , privileges , and consequences that result from the choices one makes for ones self.

  4. The ridiculousness of these charges if heightened by the fact that not only are these 16 & 17 year olds considered adults in terms of prosecution, but minors in terms of the pornography statutes, they are also considered adults in order to be able to consent to sex. Therefore it is legal for them to have actual sexual intercourse with each other to their heart’s content, but not too share naked pictures of themselves with each other. One hopes that someone with some sense will see the incredibly illogic to these cases and dismiss these charges.

    • Paul, I’ll do you one better. I was a Law Enforcement officer. I was off duty and was pursued by a young lady. She was 17 and I was in my 30’s. She first reached out to me on face book, then text and even called me. Mind you, I never gave her my number. At first, I ignored the attempts. I then decided to ask what she wanted on face book. She then begged me to text her because Facebook was running up her data. I did and our conversation led into one of a sexual nature. My thought process was we were both of legal age in NC. So we were not doing anything wrong.
      She sent me some nude photos and I sent some back. So, When she had what she wanted, she went running to a local sheriffs office. I was taken off shift, questioned, then escorted home without my badge, Gun and career. 4 Days Later, I was charged with the Class I Felony. I have yet to get an answer as to why she was not charged with the same crime. See, She didn’t act on behalf of a Law Enforcement agency. She set me up out of spite because her mother hates me. I didn’t know who her mother was. I took the fall. I would have never followed through with any sexual act with her. But because I was Honest with the authorities and a charge was there, I was charged. $4000.00 later, and a criminal record. I was placed on un-supervised probation & community Service. So, Now, I can never work in Law Enforcement and still no answers as to why she wasn’t charged with the same crime. I know what your probally thinking. I am a ho dog like every other Law Enforcement officer. No, Acually, Ive never had a charge, or claim against me. I’ve never even tried drinking, smoking or drugs. I was loved in my community and respected. I am a man of God but a child of worldly things. I made a poor choice. I didn’t hurt anyone or cause them any pain. To me, I was victimized. However, I was rambling. Its a sad story but it’s mine. I own it. Thanks for Listening.

  5. As defense counsel, I would argue that it is legally inconsistent to charge someone who is simultaneously being protected by the same law. When an element of the offense includes an age value, I don’t understand how one can be a protected class, intended to be covered via a public policy decision, then be prosecuted for participating in the act. I can’t imagine it was legislative intent to create this paradox.

    • Do you think a defender could also challenge application of the child pornography statutes to a minor on 8th Amendment grounds under Roper, Graham, and Miller? Mandatory sex offender registration is not exactly a life sentence, but it could certainly result in long lasting negative consequences for a minor.

  6. James Anderson if law enforcement didn’t do thier job they would be put in jail like Kim Davis. What does America want to follow or not follow laws.

  7. This case reminds me of some age old sayings, one of which is, “what’s done in darkness will soon come to light,” and the other, “never do anything that will be difficult to explain later,” particularly to your parents or your children. Truth is, the more society progresses with all the gadgetry, it only leads to more pageantry and, therefore, tragedy. A word of advice to parents, if I may, is to monitor your children as close as ticks on a boar. Parents, stop being “friends” to your kids and be, simply, a PARENT and don’t be afraid to be the “unpopular” parent. It’s your job, and moreover, your DUTY to your children and to yourself to make and teach the children to make more conscientious decisions, even into adulthood. Granted, some things will slip through some cracks, if you will. But, gross infractions such as this will quite possibly be negated with the teachings of moral turpitude.

  8. Give it up. Let them have privacy. We already tell them what to eat. So far the government has not been able to control sex and I really don’t think the government will ever to be able to outsmart Mother Nature. That boy/girl thing has been around a long time, even before the cellphone. Fix the potholes or something.

  9. These cases bloom in our jurisdiction on a semi-annual basis. The pattern is usually the parents discover the photos, flip out, and “want something done.”

    The “something” probably should have been addressed under the minor’s roof at some point in the past, but even good kids will do dumb things despite the best of parenting. When it really becomes a problem is when those private photos start to be shared. This seems to typically occur after a break in the relationship and given that the life expectancy of a teen dating relationship is just slightly longer than that of a mayfly, naked photo mistakes will me made.

    Discretion is something the police exercise on a daily basis when it comes to taking enforcement action, however the higher one goes on the felony scale, the less leeway one feels in exercising such discretion. This needs to be addressed at a legislative level.

  10. […] sexting case resolved. LaToya blogged here about two Fayetteville teens who faced criminal charges as a result of consensual sexting. The […]

  11. […] North Carolina laws treat sexting under child pornography laws. A teen who sends explicit texts, even though it may be consensual, may face very serious felonies and even have to register as a sex offender for the rest of their life (North Carolina treats 16+ as an adult). The legislature has yet to pass or enact a law that treats sexting as a separate, distinct crime from child pornography laws. Technology is ever changing and the law is slow to react, especially with the new developments in smartphone, social media and chat apps that exist today. For a good discussion of the possible crimes a teen can face, See: http://nccriminallaw.sog.unc.edu/teen-sexting-is-a-problem-but-is-it-a-crime/. […]

  12. We frequently monitor our female 16 year old ‘s iPhone for inappropriate language in texting and/or pictures, along with conversation involving how to manipulate us with information regarding plans being made to tell us she is going one place with friends but in actuality making plans to do just the opposit. These are just a few examples of what we have found. We have just been totally shocked with pictures and explicit language exchanged with a boy who is also 16. In conferring with close friends and family members it was brought to our attention that this situation could have legal ramifications; hence searching information on line which led us to this website. While not wanting her to have a criminal record which will follow her for the rest of her life, we are trying to find a means to put “the fear of God” instilled to prevent this from exposing her to this situation again. She is being raised in a Christian environment and she even attends a Christian school in order to associate with other CHRISTIAN teens. There are definite consequences for problems in the past to include loosing all electronic devices and grounding. We are at a total loss as to how to approach this situation and effective consequences. I know this is probably not the forum for answers but if there is anyone out there who has experienced the same problems, we are open to any and all suggestions.

  13. […] charged with serious crimes as the result of sharing nude pictures amongst themselves.  LaToya has previously blogged about the potential criminal charges that could result from […]

  14. […] LaToya Powell has a post that explores whether North Carolina needs a teen sexting law.  She has previously posted about teen sexting on this […]

  15. The mass hysteria witch hunt of our generation is our big brother overreaching porn/sexting laws. I couldn’t agree more, we need to arrest people hurting people, posting and producing abuse… not solely looking at pics, especially considering the laws are so vaguely written that it’s meaning is left up for the individual to decide. The argument is, looking at underage (under 18) pics is harmful and can facilitate abuse. If that’s true, why allow violent images online? Why can you watch videos of war atrocities? Couldn’t the same argument be made in both cases? The problem is this is a win-win for politicians and for-profit prisons, and a huge loss for common sense (as well as a very real physical/emotional loss for people prosecuted). No politician has ever lost any election for being too tough on c*p*, and putting more people in jail than another other country is good for the for-profit prison system in the U.S. Now, I ask, why not block those sites if they are convinced simply viewing images is harmful in and of itself? Don’t believe for one second they can’t, they could easily, the only issue would then be file sharing sites. Which would be the only sites you’d have to avoid. Why don’t they, simple, it again goes back to the for-profit prisons. Don’t kid yourself, that’s exactly why, and politicians who love easy targets to make themselves look like heroes. I know my comments can easily be dismissed… Except the facts are on my side, if you are just willing to look. We allow 16 year olds in many states to get married (this may come as shock but that means they have sex, I know shocking right), some states even lower the age with parental consent. Tell me how a picture is wrong, but early marriage and sex in those situations is perfectly okay? Simple, it’s not, it only is cause “they” say so. Still not convinced, why does Sally Mann, Jock Sturges and David Hamilton all have such huge success. Why are their images sold legally on Amazon or at your local book store, yet, if you search similar images the government kicks in your door? Again the answer is simple, you (i.e., any average person) likely doesn’t have the financial means to fight them, whereas, they have deep pockets. Let’s not stay silent, fight back, abuse should be prosecuted, looking at images found widely available online isn’t abuse (don’t allow others to conflate the issue). How would you like the thought police to arrest you for what you watch on TV? Oops, you clicked on and downloaded the wrong TV show, now you go to jail, and your life is ruined. Don’t kid yourself, the internet is what TV was 20 years ago to everyone that surfs the web. Stand up, fight back, write congress, write the senate, start petitions… it’s not a popular subject, don’t let others intimidate you, remember nudists view nudity for what it really is, nothing more than a human body. It’s our thoughts that they object to, not our actions, because they are simply coming after us for viewing. Also, it’s easy to see why so many don’t fight back, fear of being ostracized by the abstinence only and purity ball movement crowd is very real. Enough already, don’t be afraid anymore, fight back!

    Stats you should know:

    54% of teens “sext” (sent nude images)
    http://time.com/2948467/chances-are-your-teen-is-sexting/

    Another study put the number at 25%
    http://resources.uknowkids.com/facts-stats-sexting

    A study in the southeastern U.S. found that 53 percent of boys and 28 percent of girls (ages 12-15) reported use of sexually explicit media. The Internet was the most popular forum for viewing. (Note: doesn’t it make sense that at least some of the images they viewed were of teens, close to their own age?)
    *Brown, J. & L’Engle, K. 2009, Communications Research, 36(1), 129-151, X-Rated: Sexual attitudes and behaviors associated with U.S. early adolescents’ exposure to sexually explicit media

    So our answer is to make them criminals in order to protect them? That’s nonsense and the laws need to change, time for some common sense.

    Why the hysteria?
    1 in 6 girls take an oath (under pressure/coercion from her parents) to her father to remain a virgin at a purity ball.
    http://www.purityball.com

    For-profit prisons –
    http://m.huffpost.com/us/entry/8180124.html
    https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-become-the-biggest-lobby-no-one-is-talking-about/

    Politicians “When ‘tough-on-crime’ measures appear on the ballot, they almost always win, and often by large margins.”
    https://books.google.com/books?id=OUiZLQdGJwkC&pg=PA73&lpg=PA73&dq=politicians+always+win+when+they+are+tough+on+crime&source=bl&ots=6aCk1tCpBx&sig=nYVpEuNvsxHqQnXc5ypUDFlwMZc&hl=en&sa=X&ved=0ahUKEwjzsKLm5Z7NAhUWUVIKHU4LAzoQ6AEIPTAJ#v=onepage&q=politicians%20always%20win%20when%20they%20are%20tough%20on%20crime&f=false

  16. This is a concise summary for a research paper I am writing for school. We needed to reply to a blog or anything related to our topic. Thank You!

    Minor’s sexting between minors should be charged with a misdemeanor instead of a felony sex offense. Unless the imagine is distributed to other minors or an adult and released on the internet, the minor should be charged with a felony sex offense. As of now in the state of Colorado if a minor is caught sexting another minor they both will be charged with a felony sex offense. The charge would state distribution of child pornography and must register as a sex offender. Legislators still believe in the fight to stop minors from sexing however they feel this law is not the right approach. The legislators believe to ruin a minor’s future by making them register as a sex offender is too extreme. In a new push from the legislators there is a new push to get this law of minors texting each other overruled. They are trying to have the minors be charged with a misdemeanor instead of a felony.

    It has been discovered that 22% of teen girls and 18% of teen boys have admitted to sexting (“Teenage Sexting Statistics”, 2016). It is known that 17% of minors sexting share the messages they receive with others and 55% of those share them with more than one person (“Teenage Sexting Statistics”, 2016). I truly believe sexting is a big contributor to cyber-bullying and helps pedophiles get access to these images. However, in my opinion this law being revised is the best thing that can happen. If a child is caught doing something wrong like sexting their life and future should not be over nor made to register as a sex offender. In summary at the end of the day minors know sexting is a risk just like adults do, but that does not mean they care. As long as they are not distributing that imagine to anyone for any reason I do not see the harm in just giving a minor a slap on the wrist. Everyone was a minor at one time and didn’t think straight, we just didn’t have technology to help us make mistakes.

    • I disagree, no teen should be charged with a crime for taking a pic of their own body. Naturalists see the human body for what it is, anything else is just an individual’s thoughts. Your thoughts are not the same as mine, and playing the morality card is BS too. After all, who’s morality do we go by, mine or yours? We can’t make teens criminals and call it protecting teens, that’s the definition of hypocrisy.

      Cyber bullies should’t be allowed to control what we post, simply because we are afraid of how they will react to what is posted. Instead we should teach people to be selfconfident, teach people to be proud of their bodies, teach people sexuality is innate and normal. No pic should ever be illegal to view and no pic you choose to post of yourself should be illegal! We need to realize that we live in a time everything is online, teens are growing up in a different world today. It’s selfconfidence that’s needed, not morality police.

  17. SEXTING is crime in some countries, they are not allowed these and as part of photography nobody taking objections for normal photos, but if your thinking of nude photos then that’s may be different part

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