Two 16-year-olds in North Carolina were prosecuted and convicted of sexual exploitation of a minor after they were discovered to have sexually explicit images of minors on their cell phones.
The minors they were accused of exploiting?
That's right. A 16-year-old boy and his girlfriend were criminally charged after they exchanged sexually explicit images of themselves, and neither distributed the image any further. The boy was charged with possessing several nude images of himself and one of his girlfriend. The girl was charged with possession of a single naked picture of herself.
Both accepted plea deals that would keep them out of jail and prevent them from having to register as sex offenders for "exploiting" themselves.
It is a tricky situation. The laws that would protect minors from sexual exploitation are often being used to punish them for sexting, and the consequences of conviction far outweigh any consequences of sexting. Obviously, we don't want minors to engage in sexting, especially when we consider the reach these sexually explicit images may have in a digital age, and the potential implications for one's safety and well-being. However, should these acts of teen sexting be criminalized? Is it really justice to convict a teenager for exploiting himself or herself in the absence of a true victim?
In North Carolina, as in Oklahoma, the age of consent to sexual activity is 16. Therefore, in the case above, the teenagers involved in the case were legally able to engage in consensual sex with each other. However, because of federal definitions of child pornography and sexual exploitation prohibiting sexually explicit images of anyone under the age of 18, their cell phone pictures were illegal.
As the number of teens being prosecuted as sex offenders for consensual sexting increased in recent years, some states have taken measures to try to mitigate the penalties of teen sexting.
In 2014, Oklahoma enacted HB 2541, which amended state law to try to reduce penalties in such cases. Under 10A O.S. § 2-8-221, Oklahoma law outlines potential penalties for consensual transmission of sexually explicit images by and between minors:
B. Any individual under eighteen (18) years of age who engages in the original or relayed transmission of obscene material or child pornography via electronic media in the form of digital images, videos, or other depictions of real persons under the age of eighteen (18) years, and:
1. The original or relayed transmission is of another minor over thirteen (13) years of age and is made with the consent of the pictured individual and is transmitted to five or fewer individual destinations, known or unknown, shall be guilty of a misdemeanor violation of this section punishable by:
a. a fine not to exceed Five Hundred Dollars ($500.00) for the first offense,
b. a fine not to exceed One Thousand Dollars ($1,000.00) for a second and subsequent offense,
c. up to forty (40) hours of community service,
d. a referral to a juvenile bureau to propose a probation plan which shall be adopted through disposition, or
e. attendance and successful completion of an educational program or a delinquency prevention and diversion program as provided in Section 24-100.4 of Title 70 of the Oklahoma Statutes. The court shall have the discretion to order the parent or legal guardian of the juvenile to attend and successfully complete the educational program.
However, Oklahoma law does maintain that the criminality of the act is not affected simply because the person making the transmission is the person depicted in the images. Under Oklahoma law, a teen can be his or her own victim.
The statute does provide for an affirmative defense under the following circumstances:
D. It is an affirmative defense to the relayed transmission of obscene material or child pornography, as these terms are defined in Section 1024.1 of Title 21 of the Oklahoma Statutes, if a juvenile:
1. Has not solicited the visual depiction; and
2. Does not subsequently distribute, present, transmit, post, print, disseminate or exchange the visual depiction except for the purpose of reporting the original transmission or relayed transmission to appropriate school or law enforcement authorities.
This allows protection for teens who receive unsolicited images and report them to school officials or law enforcement.
Although Oklahoma is one of 20 states that have enacted laws to reduce the penalties minors face for teen sexting, it is important to remember that it is still a crime, and there are still legal consequences involved with teen sexting. It is also critical to keep in mind that that an adult aged 18 or older who engages in legal consensual sex with a teen aged 16 or 17 will face child pornography prosecution if he or she makes, receives, or possesses sexually explicit images of the teen under 18.
State and federal child pornography laws were created before the advent of sexting, and therefore, they do not adequately prescribe justice in these cases. If you or your child has been criminally charged as a result of sexting, find qualified criminal defense representation immediately.