Would you know if your kid was sexting child porn?
Sexting (by kids and between kids) is illegal in Florida. If your son or daughter is under 18, add child pornography to the list of things they could be doing that you have no idea about.
A minor commits sexting if “he or she knowingly, uses a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity, as defined in s. 847.001(9), and is harmful to minors, as defined in s. 847.001(6).”
What does the statute mean by “nudity” that is “harmful to minors”? The short answer is pretty much any picture involving underage nudity other than breastfeeding. Stated differently, pretty much any sext between minors is illegal.
For example, if two kids (under 18 years-old) engaged in a high school romance exchange explicit pictures of each other, they shouldn’t be charged as felons, at least not right away if they are caught. The first “sext” is a noncriminal violation (like a speeding ticket). The second one is a misdemeanor that could involve jail (or secured detention in juvenile court). If they are found to have committed the same offense for a third time, they could be looking at a third-degree felony (up to five years of prison). It is really easy to get hit with multiple charges because the pictures aren’t likely discovered or brought to the attention of police right away. That means three separate instances over the course of three separate days could wind up as a felony.
Here’s where the law gets tricky. It’s a defense to possession of a nude child photograph if the recipient child 1) did not solicit the photograph or video, 2) took “reasonable steps” to report the photograph or video to the minor’s legal guardian or to a school or law enforcement official, and 3) the minor did not transmit or distribute the photograph or video to a third party.
It makes sense that the law has an “out” for people that unwittingly receive something they never asked for, but the law places the additional burden of involving other people to “report” the receipt of the contraband.
Reports to police can come from anywhere, often the other kid’s parents, teachers, or other students. As always, when the police come knocking, remember anyone (even kids) that are accused of a crime have the right to remain silent. Confessing is usually the worst thing anyone can do. Police can even question your kid without a parent present. It’s best to get legal advice to assess the strength of the government’s case and determine the next step before waiving any rights or admitting to what could be a felony.
An ounce of prevention can help you avoid the whole ordeal. There are a variety of companies that offer services to monitor your kids’ cyber-activity. Every service has its limitations. I recommend that you do a little research and find the one that is right for you. Keeping your children out of juvenile court and off the sex offender registry is worth every cent.
Matthew E. Ladd, Esq. is a criminal defense attorney and former prosecutor licensed in Florida. Nothing contained in this post should be considered formal legal advice or the formation of an attorney-client relationship. Call Attorney Matthew Ladd for more information on how you can protect your children accused of any crime at 305-665-3978.