Juvenile Sexting / Child Pornography Crimes
As more and more young people use cell phones, incidents of juveniles sending inappropriate pictures to each other has increased dramatically. If the photographs or videos include images of a naked body or are otherwise sexually explicit, then a juvenile can be charged with a felony offense of “child pornography.”
The laws against child pornography were not originally intended to included kids sending pictures or videos to each other. Of course, sexting between two consenting adults is never a crime. Why should two consenting teenagers face criminal charges for such an activity?
The reason why sexting is often considered to be “child pornography” is that the law does not allow children to “consent” to such activities. Florida has recently changed its laws to recognize the difference between adults committing crimes of “child pornography” and juveniles who engaging in sexting so that these young people do not become registered sex offenders.
The Florida legislature recently created Section 847.0137 which includes a graduated schedule of penalties and punishments.
Attorney for Juveniles Accused of Sexting in Florida
The attorneys at the Sammis Law Firm represent juveniles charged with sexually motivated crimes including the possession or transmission of child pornography and less serious offenses classified as “sexting.”
Our attorneys in Tampa are experienced fighting cases in the juvenile courts throughout Hillsborough County, and the surrounding counties including Manatee County, Pinellas County, Pasco County, Hernando County and Polk County, FL.
Elements of a Minor Who Transmits Child Pornography under Section 847.0137
The more serious felony offense that applies to a juvenile who possesses or transmits “child pornography” is classified as a third degree felony, even for a first offense. These crimes for transmitting or possessing pornography are prosecuted in juvenile court under Florida Statute 847.0137, which is a third degree felony offense if committed by an adult.
The elements of the offense for a minor transmitting child pornography include:
- the juvenile defendant is under the age of 18 years old;
- the juvenile defendant transmits by sending or causing to be delivered;
- any image, information or data containing child pornography;
- from one or more persons or places;
- to one or more person or places;
- over or through any medium, including the Internet;
- by use of any electronic equipment or device including a cell phone, tablet or computer.
Under this statute, the term “child pornography” is defined as and image depecting a minor child engaged in sexual conduct.
Elements of Sexting under Section 846.0141
The Florida legislature passed the sexting statute in 2011. The statute originally made a first offense a civil offense but did not provide for a mechanism to enforce the offense. The legislature fixed that loophole in by making a first offense a civil citation.
The elements of sexting under Florida Statute 847.0141 apply to images that are not classified as “child pornography” but are instead classifed as depicting nudity or otherwise being harmful to minor children. Under Florida Statute 846.0141, the following elements of the offenses must be proven at trial beyond all reasonable doubt:
- the person accused of the offense is a minor child under the age of 18 years old;
- the minor uses a computer, or any other device capable of electronic data transmission or distribution;
- the minor transmitted or distributed to another minor any photograph or video of any person which:
- depicts nudity; and
- is harmful to minors;
- the minor possessed a photograph or video of any person that was transmitted or distributed by another minor which:
- depicts nudity; and
- is harmful to minors.
The phrase “depicts nudity” is defined in s. 847.001(9) to mean “the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.”
The phrase “harmful to minors” is defined in s. 847.001(6) to mean “any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
- Predominantly appeals to a prurient, shameful, or morbid interest;
- Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and
- Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.”
Penalties for Juveniles Accused of Sexting in Florida
Penalties for knowing or reasonably knowing that he or she was transmitting “child pornography,” as defined in s. 847.001, to another person in Florida or in another jurisdiction commits a felony of the third degree, punishable by up to five years in Florida State Prison.
On the other hand, the penalties for for children charged with sexting crimes prosecuted under Florida Statute 847.0141 depend on the number of prior offenses including:
- a first offense is consdiered to be a noncriminal violation;
- a second offense is a misdemeanor of the first degree if the violation occurred after the minor has been found to have committed a noncriminal violation for sexting or has satisfied the penalty imposed in lieu of a court appearance; and
- a third offense is a felony of the third degree for a violation that occurs after the minor has been found to have committed a misdemeanor of the first degree for sexting.
First Offenses for Sexting under Florida Statute Section 847.0141
The minor must sign and accept a citation indicating a promise to appear before the juvenile court. In lieu of appearing in court, the minor may complete 8 hours of community service work, pay a $60 civil penalty, or participate in a cyber-safety program if such a program is locally available. The minor must satisfy any penalty within 30 days after receipt of the citation.
Citations for Sexting
A citation issued to a minor under Florida Statute Section 847.0141 must identify the alleged conduct as a noncriminal violation. The time that the noncriminal violation was committed must be listed on the citation along with facts known to the officer that constitute reasonable cause to believe the violation was committed, The specific section of the Florida law violated must also be listed on the citation. The citation must also list the procedures to contest the citation.
If you wish to contest the citation, then contact an experienced criminal defnse attorney. We can ahlep you ask the court for a determination that the child did not commit this noncriminal violation. We also represent young people after an allegation that they failed to comply with the citation when the court issues a show cause order.
If the court finds the child in “contempt” of the citation, serious consequences can apply, including the court sending the information to the Department of Highway Safety and Motor Vehicles where the notation will remain on the child’s driving record and will delay the issuance of, or suspend the driver license or driving privilege of, the minor for 30 consecutive days.
Children who engage in such behavior can also be charged with felony offenses for child pornography is the photograph or video that depicts nudity also includes the depiction of sexual conduct or sexual excitement. Additionally, the crime can be charged as stalking under s. 784.048 or cyberharassment (revenge porn).
Jurisdictional Requirements for Sexting Prosecutions
Florida Statute 847.0137, that prohibits the transmission of child pornography through a cell phone, tablet, computer, or another type of electronic device, is not construed to prohibit prosecution of a person in this state or another jurisdiction for a violation of any law of this state, including a law providing for greater penalties than prescribed in this section, for the transmission of child pornography, as defined in s. 847.001, to any person in Florida.
The provisions of this section do not apply to subscription-based transmissions such as list servers.
Defenses to Sexting Allegations under Florida Law
Defenses to sexting crimes exist if the child did not request that the image be sent to their cell phone or other electronic device and they took reasonable steps to report the image to a parent, legal guardian, school official, or member of law enforcement. This defense does not necessarily apply when the minor child transmits or distributes the photograph or video to a third party other than a parent, legal guardian, school official or member of law enforcement.
The statute also limits the number of charges that can be filed. Under Florida Statute 847.0141(2)(a), the distribution or transmission of multiple photographs or videos is considered to be a single offense if the photographs or videos were transmitted or distributed within the same 24-hour period.
Additionally, under subsection (b), the possession of multiple photographs or videos that were transmitted or distributed by a minor child is a single offense if the photographs or videos were transmitted or distributed by a minor in the same 24-hour period.
This article was last updated on Friday, December 15, 2017.