When Does a Selfie Become a Crime?

Robert M. Bernstein's Sex Crimes Legal Blogs

Licensed for 24 years

Attorney in Beverly Hills, CA

Robert M. Bernstein

Serving Beverly Hills, CA

Member at firm Law Offices of Robert M. Bernstein

Serving Beverly Hills, CA

There’s nothing new about teenagers flirting. But there is something
new about the way they are doing it these days and their acts can be prosecuted
as Possession, or Distribution of Child Pornography by law enforcement.

If you’re a parent to a teen, you have definitely already heard of,
or been warned about the possible social dangers of sexting. But while
the older generation raises an eyebrow at the practice, sexting has become
quite commonplace, with polls indicating that nearly 30% of all teens
have participated in sexting.

For teens, sexting has become so normalized that the social, or emotional
risks may seem negligible. But what they probably don’t realize
is there are very serious legal consequences. California law provides that if
anyone knowingly coerces or encourages a minor under the age of 18 to be photographed
sexually is in violation of child pornography laws, even if that person
is a fellow minor.

When two minors exchange nude photos with one another, they are violating
strict laws that explicitly forbid the production, possession, or distribution
of child pornography. Other charges that have been lobbed at sexting teens
in different states include invasion of privacy and sexual exploitation
of a minor.

The strict and comprehensive laws regarding child pornography were created
not only to target predators but to protect vulnerable children. But consider
this: if a 15-year-old in Los Angeles sends a nude photo of herself to
a friend, she can face a state charge of violating California Penal Code
Section §311—possession, or distribution of child pornography.
This is punishable by up to six years in prison. For 15-year-old high
school students, that’s an incomprehensible amount of jail time
that is plainly disproportionate to their youthful mistake.

Recently, one North Carolina 16-year-old boy learned all this the hard
way, when a police search of his phone revealed nude photos sent to and
by his girlfriend, also 16. The authorities charged him with five felonies,
for taking the photos of himself and for possessing those of his girlfriend.
The teen took a plea deal, avoiding ten years of prison time.

What if he had shared images sent by his girlfriend with a buddy or two?
As stated above, under California law he could be facing a six year prison
sentence. If he had been prosecuted pursuant to federal charges of distribution
of child pornography (18 U.S. Code § 2252), the 16-year-old could
have faced anywhere from 5 to 20 years in federal prison. Whether the
charges are in state or federal court, they guarantee mandatory lifetime
registration as a sex offender.

As problematic sexting scandals become more common, the way they are handled
has become only more complicated. Often, if the activity is revealed in
a school setting, there is non-criminal disciplinary action taken against
students. But some districts find themselves in a bind, they are required
to report such acts to the police to comply with state or federal laws.

While a push is made to educate teens about the dangers of sexting—often
highlighting its emotional or social risks—it is important for them
to be wary of the serious legal consequences. What seems like a victimless,
if ill-advised, method of flirting to a high school student could lead
them to being marked for life as a sexual predator.

‹ Blogs Home