Sexting

Yesterday, I moderated the Juvenile Brown Bag lecture on the topic of  ‘sexting.’  I have been working on a blog entry on this subject since December, but yesterday’s lecture inspired me to finish and post it.

With the increased incidents of “sexting” among teens, it seems appropriate to address the issue and the juvenile delinquency ramifications of this activity.  Wikipedia includes a definition of “sexting” (a combination of sex and texting) as the act of sending sexually explicit messages or photos electronically, primarily between cell phones.  Roughly 20 percent of teens admit to participating in “sexting,” according to a nationwide survey (pdf) by the National Campaign to Support Teen and Unplanned Pregnancy.

There have been several incidents of adults and juveniles being charged with felonies for sexting over the past year. Last year, a 14-year-old girl in Michigan was charged with felonies for sending nude images of herself to classmates.

Michelle Simonson, 28, of Oxford was to go on trial, charged with distributing sexually explicit material to a minor and enticing a minor for immoral purposes and had faced up to four years in prison. But in a plea agreement reached 10/30/2009, she agreed to enter guilty pleas in exchange for three months in the Oakland County jail. (You can read the Detroit Free Press Article here).  Police allege Simonson, a teacher at Sashabaw Middle School, sent the 14-year-old boy, a student at the school, a semi-nude picture of herself and about 50 texts over the course of the year.  His foster parents discovered the texts and turned them over to police.

Brandon Figurski, a 20 year old assistant swim coach at Oxford High School, was charged with child sexually abusive activity, using a computer to commit a crime and communicating with another to commit a crime for sending sexually explicit texts to two 15-year-old girls. (You can read the full story on MLive here).

This month, a man accused of sending sexually explicit messages to a 14-year-old girl after visiting her home to set up her laptop computer was charged with one count of using a computer to communicate with another person to commit a crime, a 4-year felony, and one count of attempting to distribute sexually explicit material to children, a 2-year misdemeanor.

Clearly, sexting is pervasive in youth culture in America and law enforcement has taken notice.  So, what are the legal ramifications to children caught sending and receiving these messages?

The law

Under Michigan law, sexting can be a violation of MCL 750.145c, which prohibits the production (a 20 year felony), distribution (a 7 year felony) or possession (a 4 year felony) of child sexually abusive material.  “Child sexually abusive material” is defined as “any depiction, whether made or produced by electronic, mechanical, or other means . . . of a child (a person less than 18 year old) or appears to include a child engaging in [sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity]. ” See MCL 750.145c(b),(h), (m).  The statute includes detailed definitions of each of the prohibited sex acts.

A person that sends a sexting message may also be charged with use of the computer or internet in the commission a sex offense under MCL 750.145d.  Most cell phones today are so called smart phones, which contain computer processors and are wirelessly connected to the internet through the cell provider’s network.  These phones fall within the broad definition of a computer under the statute.

Who can be charged?

To illustrate who can be charged in a sexting case, consider the following scenario: A 15 year old girl takes a nude photograph of herself with her cell phone and sends it to her boyfriend.  He then sends it to three of his friends, who each send it to 10 of their closest friends (for those keeping track, this photograph is now in the hands of 35 people – potentially within minutes of taking the picture).  Who can be charged?  The answer:  everyone.

• The 15 year old girl can be charged with production and distribution of child sexually abusive material;
• Her boyfriend can be charged with distribution and posession;
• His friends can be charged with distribution and possession; and
• Their friends can be charged with possession.

This is a perfectly plausible and all too typical scenario.

The Sex Offender Registry

Another consideration in any sexting case is the requirements under the Sex Offender Registry Act.  MCL 28.721 et seq.  An adjudication  triggers the registration requirements for the non-public registry for 25 years.  A juvenile may also be required to disclose the adjudication on any college or financial aid applications.  As always, if the juvenile is placed on the consent calendar, there is no adjudication and the file is not abstractable to any law enforcement or other agency.

Here are links to the statutes found in this article:

Child Sexually abusive activity: MCL 750.145c

Use of a computer in the commission of a sexual offense: MCL 750.145d

Sex Offender Registry Act: MCL 28.721

© 2010, Melinda Deel. All rights reserved.

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