Sexting is “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet.” Miller v. Skumanick. This activity, though a relatively recent phenomenon, has become very widespread. Studies reveal that about 1 in 5 American teenagers engage in sexting.
The problems with sexting are too numerous to count. First, and most importantly, it is illegal—and frequently for the sender as well as the recipient.
In Michigan, the consequences for sexting could be life changing. Enticing a minor (under 18) to pose for a photo is a 4-year felony. MCL 750.145a. Sending such a picture is a 7-year felony. MCL 750.145c(3). Even mere possession of a “sext” is a 4-year felony. MCL 750.145c(4).
The penalties can get much more serious. Encouraging a minor to engage in sex via sexting can be a 20-year felony (Child sexually abusive activity – MCL 750.145c(2)). It is even illegal to surveille, distribute, disseminate, or transmit a recording, photograph, or visual image of an individual having a reasonable expectation of privacy, if the victim is a minor. MCL 750.539j.
Penalties are enhanced for using computers or for second offenses. MCL 750.145d; MCL 750.145b. And the offender is likely to be required to register as a sex offender. MCL 722.28. While not nearly as common, the consequences of a federal charge are even more severe, including possible mandatory minimum prison sentences of 5 and even 10 years.
The Permanence of Sexting
Another issue with sexting is its permanence and devastating impact. An impact that exceeds evidentiary value against the possessor or sender of the sext; the simple truth is that once you send an email, a text, or picture, the evidence is now out there for the police to discover and the prosecutor to use. This is no longer a he said/she said situation – the text is there for all to see (and read). If a 15-year-old girl sends a naked picture of herself to her 16-year old boyfriend, that evidence is now there, on at least two phones or computers, and frequently even if both parties want to get rid of it.
The importance of this cannot be overstated. The data on teenagers and texting is simply stunning – studies show that over 70% of communication between teens is done by texting. While parents, teachers, and other adults all make fun of the next generation because they never talk to each other, opting instead to text, every single text message that has an accusation in it can be used as evidence to support a criminal accusation by a spurned ex-girlfriend, or the parents of an ex-boyfriend.
The Legal Ramifications
The legal ramifications can be profound. In Iowa, a high-school student was convicted of “knowingly disseminating obscene material to a minor” and ordered to register as a sex offender for sending a naked picture to a friend. State v Canal. He sent the picture after the friend asked him for it three or four times. The friend thought she had deleted the picture but her parents found it and contacted the police.
In Florida, a high school student was convicted of sending child pornography, sentenced to five years probation, and required to register as a sex offender. The student re-sent a picture of his girlfriend, who he had been dating for over two years, to others after an argument. Originally, the girlfriend took the picture and sent it to the student.
In Pennsylvania, several students were threatened with prosecution, long prison terms, and registry under the Pennsylvania Registration of Sexual Offenders Act. The students had been trading images of “scantily clad, semi-nude and nude teenage girls.” The district attorney, promised to drop the charges if the students successfully completed education and counseling. But he warned that if the students did not participate in or complete the program, they would be charged and prosecuted.
In Washington, several students were prosecuted for resending a picture of a girl sent to a boy she liked. Three students eventually pleaded guilty to telephone harassment but could have been imprisoned and placed on Washington’s sex-offender registry.
Teenagers are not the only ones being prosecuted for sexting. In Virginia, a high school assistant principal was prosecuted for investigating sexting in his school. The assistant principal, a former Fulbright exchange teacher, Peace Corps volunteer and devoted educator for over 30 years, was hounded by a tough-on crime county prosecutor. He had an image of a girl wearing only underpants and covering her breasts with her arms on his cell phone and school computer. The image was on his computer because his principal directed him to preserve a copy for the investigation. The image was on his cell phone because, as a computer neophyte, he copied the photo onto his computer via his cell phone after a student sent him the picture during the investigation. Eventually, a judge dismissed the charges, but not before the assistant principal spent $150,000 and a year of his life fighting the charges.
Three Questions to Ask
There are three significant questions that must be asked about every sext.
First, “whose idea was this?” The answer will determine what, if any, criminal liability exists. Kirsch & Satawa, PC is presently involved in a case where a 14-year-old was asked to take a picture of three of her friends having sex on the school football field. She did and at the request of one of the subjects in the picture sent it to her via text message. The picture was taken with the consent of everyone in it. The photographer deleted it from her phone. A different star from the photo got in trouble three weeks later for cheating on a test and the principal asked for his phone. The image was found and turned over to the police. The photographer is charged with distribution of pornography, the subject is charged with possession of pornography. They are both expelled from school. In this case, the one whose idea it was is the only one not in trouble. It does not always turn out that way, though.
Second, “Where will the picture end up?” The answer to this is indeterminate. The infinite bounds of the Internet have made it impossible to know where the image will end up. It is more common for the first recipient to be the last than for the one who believe s/he is the last recipient to really be the final resting place. Once an image is out there its use is untraceable and duplicative. Every time the image is on a phone (possession) or sent (distribution) a crime is committed.
Third, “What was going on at the time the picture was taken?” If an individual forwards a sext the answer may be “who knows.” The subject may have been having fun; maybe this is a joke but maybe s/he was coerced or filmed without even knowing it was happening. There is nothing about sexting that is “safe.”
Sexting cases are difficult on many levels. Neither the legal system nor its laws contemplated the technological fast lane in which these images are copied, taken, stolen or distributed; we encourage you to advise your children on the potential consequences of this behavior. If your client has been charged with a crime related to sexting, you should consider referring the matter to the specialists at Kirsch & Satawa. Our depth of experience and expertise will ensure your client receives the best possible representation in this relatively new and highly complex field.