Miami Criminal Defense Lawyer on ‘Sexting’ and Child Pornography

December 19, 2008 by David S. Seltzer

For the past week or two, a hot topic in news outlets around the U.S. has been “sexting” -- a practice among teenagers of sending naked or near-naked pictures of themselves via text message to friends, boyfriends and girlfriends. ABC News reports that many teens then forward the pictures to friends or post them online, where they can spread quickly. The On Parenting blog at the Washington Post says that 22% of girls and 18% of boys reported having sent these pictures electronically.

As you might imagine, this can have profoundly negative consequences for the teens’ social lives -- but in some cases, it’s worse. A few teenagers around the country have actually been charged with making or possessing child pornography because of these pictures. In Wisconsin, a 17-year-old boy was charged with possession after posting naked pictures of his 16-year-old ex-girlfriend on the Web. Four middle-schoolers in Alabama were arrested for exchanging photos. And in New York, a 16-year-old is facing prison for soliciting and sending pictures of his 15-year-old girlfriend to friends.

As a cyber crimes defense attorney in South Florida, I do not believe that our child pornography laws were designed for these situations. The teens usually take their own pictures and voluntarily share them, which makes it difficult to see it as the kind of exploitation of children that Florida child pornography statutes were intended to punish. In fact, under Florida state law, actual sexual activity between young adults ages 16 to 21 is not criminalized under “normal sex offender rules” -- but “sexting” may still be. (As far as I know, Florida has not yet seen this type of prosecution.)

Sending pictures to a third party without the subject’s consent may be another matter. This is certainly unkind, and courts or lawmakers may decide that it’s a criminal activity as well. However, a conviction for possession of child pornography in Florida draws up to five years in prison for each picture or video, plus a lifelong requirement to register as a sex offender. This seems like an overly harsh punishment for a crime that at least started out consensual.