Sexting. Most parents probably don’t tolerate their teens sexting, but what parents and teens should know is the potential serious criminal consequences of such actions.
What seem like youthful indiscretions can carry a lifetime of criminal consequences that have ruined some teens’ futures. Lawmakers have been slow to address sexting with new legislation. Currently in California and most other states, sexting is prosecuted under traditional child pornography laws.
Prosecutors exercise discretion in determining which of these cases to prosecute. Minors don’t typically face criminal charges for consensual conduct. But there are many instances where non-consensual conduct is involved. For example, there are seemingly constant stories in the media about nude pictures being taken of minors passed out drunk at parties. Other times we hear of stories about pictures being taken consensually by minors who are dating. Once the couple breaks up, the photos are posted all over social media. Taking these pictures of anyone under the age of 18, with or without their consent, is a crime.
Teens and parents need to be aware that the same laws designed to prevent adults from trading visual depictions of child sexual abuse can also be used to prosecute a 15-year- old sending nude or semi-nude pictures of herself to her boyfriend. A minor who takes nude or semi-nude pictures of others and sends those pictures to another teenager violates the laws prohibiting possessing child pornography, creating child pornography and distributing child pornography. The laws make no exception for the age of the person taking the pictures or the circumstances under which the pictures were taken.
More concerning is the same penalties attach. In other words, a teen who takes a nude picture of herself or her boyfriend potentially faces the same penalties as a child pornographer. The federal statute criminalizing the distribution of child pornography contains a five-year mandatory minimum prison sentence and no eligibility for probation. The legal definition of distribution includes sending the picture via a text message, as an email attachment or posting an image to social media sites like Facebook. Receiving such pictures via text or email is also a serious crime subject to the same five-year mandatory minimum prison sentence. Penalties for violating California’s prohibitions against possessing child pornography are not as lengthy as the federal penalties but contain other serious consequences, in addition to prison terms.
Violations of the state and federal laws banning child pornography carry requirements that those convicted under these laws register as sex offenders. In California, the requirement to register as a sex offender is a lifetime requirement that is next to impossible to get free of. A 19-year-old, legally an adult, required to register as a sex offender for texting pictures of an ex-girlfriend will be required to register for the rest of his life. Generally, minors ordered to register as sex offenders by California juvenile courts can later attempt to seal their records. In some situations, minors can be prosecuted as adults. In such cases, those minors have to register for life and cannot later seal their records.
Anyone, including a minor, required to register pursuant to Penal Code section 290 is subject to California’s residency restrictions as set forth in Penal Code section 3003.5. Registrants, regardless of the facts of their underlying crime, cannot live within 2,000 feet of a school or a park. If a family owns a home within 2,000 feet of a school or a park and one of its children is required to register as a sex offender, either the minor can’t live with the family or the family has to move.
In 2012, the California Legislature considered four different bills pertaining to sexting. None of the bills made it out of their committees. At least one, AB 321, is likely to resurface in the future. Had it become law, AB 321 would have authorized a court to order any minor who possessed sexually explicit material to pay a fine of not more than $1,000 and undergo counseling. The cost of the counseling would have been the responsibility of the minor’s parents.
While lawmakers continue to struggle with ways to make the laws keep up with the times, teens and their parents need to be aware of the serious consequences of sexting. Teens need to understand that breaking these laws could haunt them for the rest of their lives.
Kresta Nora Daly is a criminal defense lawyer at Barth, Tozer & Daly in Sacramento.
What seem like youthful indiscretions can carry a lifetime of criminal consequences that have ruined some teens’ futures.