Sexting and Child Porn Charges

“Sexting” is a relatively new phenomenon in an age where minors have access to cell phones with cameras at increasingly young ages. Sexting typically involves sending sexually explicit messages or photos via cell phone. By nature it usually starts consensually, although the prevalence of smart phones makes it all too easy for a person to disseminate messages intended to be private and escalate into the territory of “revenge porn.” However, even the most consensual texting between teens can lead to a felony conviction and required registry on the sex offender registry in North Carolina.

North Carolina lawmakers have not yet enacted a law that specifically addresses teen sexting. Rather, prosecutors use obscenity and child pornography laws to prosecute teenagers still considered minors under most areas of the law. The problem? North Carolina’s laws require that a person be 18 or older to receive or disseminate sexually explicit texts, photos or videos. However, North Carolina is one of two states that automatically prosecute a person as an adult beginning at age 16. The illogical result is that many juveniles who are 16 and up but not yet 18 can be tried as adults—and for the crime of exploiting…themselves.

To understand the legal no-man’s land in which North Carolina state law places these teens, a brief explanation of the following areas is necessary: 1) “Criminal age,” or the age cutoffs for being charged as a juvenile versus adult, and 2) our state’s obscenity and child pornography laws.

As of April 2016, North Carolina and New York are the only two states that still automatically try 16-year-olds as adults in the criminal courts. In the last few years, a handful of states including Connecticut, Massachusetts, New Hampshire, Mississippi and Rhode Island have raised the automatic age at which the criminal justice system considers a person an adult to 18. Other “holdout” states such as South Carolina keep automatic age of criminal adulthood at 17.

The fight surrounding at what age a person can be tried as an adult is one grounded in social science regarding juvenile brain development…and money. States that have “raised the age” have done so in response to overwhelming data indicating that adolescent brains are still developing at age 17. Many studies indicate that the parts of the brain crucial for reasoned decision-making does not fully develop until the mid-20s. Adolescents are also particularly vulnerable to abuse when housed in adult prisons.

However, it is much more expensive to house a young person in a juvenile facility than an adult one because minors are legally entitled to education, treatment and other programs that are not required for adults. The Texas Legislature commissioned a report in 2015 indicating, for example, that it costs over $366 per day to house a youth in a juvenile detention facility, as opposed to just $50 for an adult prisoner.

Unlike some states, North Carolina has not passed any laws regarding sexting between minors. Because of this, our general obscenity and child pornography laws apply to minors caught sending sexually explicit texts. Although the purpose of these laws was originally to punish adult offenders who sexually victimize children and those who engage in “revenge porn,” prosecutors also use them to prosecute teenagers for consensual sexting.

Under the following statutes, a minor is any individual under the age of 18. “Sexual activity” is defined as including masturbation and sexually explicit nudity. “Nudity” includes any buttock, nipple, pubic area or genital that is not at least opaquely covered (i.e., not covered by a see-through material).

1. Obscenity: any depiction of sexual activity. Factors courts consider in determining whether material is “obscene” include whether the image focuses on the minor’s nudity; the setting’s sexual suggestiveness; and the minor’s level of undress.

   1. Under N.C.G.S. 14-190.1, it is a Class I felony to intentionally create, receive, possess or distribute material depicting sexual activity. Many “sexts” would fall under this definition of obscenity.

   2. Under N.C.G.S. 14-190.5, it is a Class 1 misdemeanor to model, pose for, or photograph a person, including oneself, for the purpose of making an obscene image to share with someone else.

2. Dissemination of Material Harmful to Minors: makes it a Class 1 misdemeanor to knowingly present or distribute to a minor under 18 materials that are harmful to minors (under the statute, this is material containing sexual activity or sexually explicit nudity).

3. Sexual Exploitation of a Minor (Child Pornography)

   1. Requires a visual representation of a minor engaging in sexual activity, including masturbation. Child pornography is chargeable by varying degrees, all of which are punishable by mandatory registration with the sex offender registry.

      1. First-degree sexual exploitation of a minor - It is a Class C felony to knowingly encourage or facilitate a minor to engage in sexual activity for the purpose of making a picture or video of the activity. A sixteen year-old asking his girlfriend of the same age to send him a sexually explicit picture or video could be guilty under this statute.

      2. Second-Degree sexual exploitation of a minor - It is a Class E felony to photograph, record, receive or duplicate material depicting a minor engaging in sexual acts.

      3. Third-degree sexual exploitation of a minor - It is a Class H felony to possess materials depicting a minor engaging in sexual acts.

If you or a loved one is facing charges involving obscenity or any other sex related criminal charge, it is extremely important that you speak with a local criminal defense attorney who is experienced in defending clients against similar charges. Arnold & Smith, PLCC is criminal and civil litigation firm based in Charlotte and Mooresville, North Carolina. Our criminal defense attorneys are prepared to zealously defend clients against a wide variety of criminal charges including drug possession and trafficking, driving while impaired (DUI/DWI) and sex-related crimes. Contact our office today for an initial consultation with one of our criminal defense attorneys about your case.