We are not Texas, but still, Virginia’s legal system has never been called “forgiving”. This is especially true for sex crimes against minors. Like most places, Virginia’s legislators have spent the last decade clamoring for the title of “toughest on pedophiles”. The problem is that teens and parents do not realize that many of the defendants in these child pornography cases are teenagers with camera phones.
Sexting, or sending sexually explicit text messages, videos, and pictures over the internet, is not only rampant among teenagers (and even some pre-teens) but it is also extremely illegal because underage sexting is child pornography. The law simply does not distinguish much between the 40 year old man sharing photos of the children he molests and a 14 year old taking naked photos of his underage girlfriend.
While there are those who would like to debate the value or fairness of these laws, I am more concerned with educating parents and teenagers about the legal consequences of sexting.
In Virginia, the criminal charges that stem from sexting fit into two categories: 1) crimes that involve child pornography, such as possession or production of child pornography and 2) crimes that involve the actions that occur while sexting, such as nonconsensual photography of private part, or indecent exposure.
Child pornography is a very specific legal term in Virginia. The statutes state specific body part, sexual acts, and simulated sexual acts that may not be shown in any image, photo, video, etc. While I could spend several squeamish paragraphs going into graphic detail, I think it is sufficient to say that any images of minors that wouldn’t want your mother or spouse to find qualifies as child pornography. I would bring special attention to the fact that simulated sexual acts involving clothed minor’s counts as child pornography as well.
In Virginia production of Child pornography, possession of child, and distribution of child pornography are three separate felonies. A teen who takes a dirty photo and shows it to his friends immediately become guilty of three separate felonies as well as another crimes he or she may commit.
Va Code 18.2-374.1 (Production of Child Pornography)
Production of Child Pornography is a very serious felony. The penalty for production of child pornography is 1-20 years in prison if the victim is over 15 years old and 3-30 years if the defendant is more than 7 years older than the minor. If the victim is under 15 years old then the defendant faces 5-30 years in prison, and 15-40 years if the defendant is more than 7 years older than the victim. A second conviction for child porn can result in up to 15-40 years in prison depending on the age of the defendant and victim.
A person can be guilty of production of child porn if they:
1) Solicit, entices, etc. a minor to be the subject of child porn.
This means that the crime of production occurs whether or not the “victim” agrees or goes through with the act. So a teenager who asks a girl to let him take a dirty photo has committed felony production of child porn whether or not the girl agrees. This is particularly dangerous because many of these kids are asking for dirty photos of each other over the internet via chat rooms, email, or text where there is written proof of their crime that any police officer can simply print off and bring to court.
2) Produces, prepares to produce, or attempts to make child pornography.
Attempt to commit a serious felony is crime and production of child pornography is no exception. Once again, simply trying to take a dirty photo of a minor is a crime. A young man who jokingly tries to stick his camera phone under a girls skirt is guilty of production of child pornography even if he doesn’t succeed.
3) Knowingly takes part in or participates in the production of child pornography.
This is how many good kids can get in trouble. “Participates” is a very broad word and children who are not sexting themselves may be found guilty of production of child pornography under this clause simply because they are friends with the wrong people. Helping a friend download pictures, giving verbal encouragement, loaning a friend your camera, photo-shopping pictures, or just standing by and watching (being a look out) can be defined as production of child pornography under this sub section.
Additionally, this clause could be used to convict the subject of child pornography of production of child porn. If a child is taking naked photos of themselves then they could go to prison under this clause.
4) Financing child pornography or attempting to finance child pornography.
Loaning a phone, lending a friend some money, letting a friend use your email account, or giving any good or service that has financial value to a person who will use them for underage sexting can be found guilty of financing the production of child pornography.
Va Code 18.2-374.1:1 (Possession of Child Pornography)
Knowingly possessing child pornography is a class 6 Felony, meaning that it can result in up to 5 years in prison. Subsequent convictions result in a class 5 felony with up to 10 years in prison.
Possession is very liberally defined in two ways. 1) Intentions are irrelevant and 2) possession occurs whenever you have the ability to retrieve or view the images by nearly any means.
Possession of child pornography is no different than possession of drugs or weapons. If you are caught with cocaine, it doesn’t matter whether you were about to snort it or if you just found it in your child’s backpack and was about to throw it in the toilet. You are going to be arrested either way.
When teachers ask me what to do when they discover dirty pictures on their student’s phones I tell them to treat it like a loaded gun or a kilo of cocaine. Don’t touch it, don’t examine it, just call security immediately. Never give a child back a phone that has pornography on it because giving sexually explicit material to a minor is a crime and if its is child pornography then that is distribution of child pornography which is even worse.
What to do with unwanted child porn is a real problem for good kids who may be sent dirty pictures by their friends. The good kids mistakenly believes that she is safe as long as she doesn’t look at the photos or as long as he doesn’t approve. It doesn’t matter whether you think it is disgusting, if you are caught possessing child porn you are going to be arrested just like possession of crack or a concealed weapon.
It is also important to realize that putting dirty photos in your computer or phone’s trash bin doesn’t solve the problem. If you can retrieve the pornography then you are still in possession of it. Think of child porn like drugs again. If the police find a kilo of cocaine in your trash can are they going to arrest you?….yep!
The law is very extreme in this regard. Many pedophiles have attempted to avoid conviction by simply viewing porn on line without downloading the pictures, they believe that by not downloading the images they are not in possession of the pornography. However, forensic computer scientists are sometimes able to reconstruct images of child porn based on temporary files left on the defendant’s hard drive after surfing the internet. If a forensic scientist can reconstruct the images off your hard drive then you are still in possession.
Once again, it is just like drug smuggling. Even if you hide drugs in your gas tank and it takes a mechanic to recover them you are still going to go to jail. Being “hard to get to” is not a defense to possession. The best defense is to avoid sexting like the plague and to monitor the communications your children are sending and receiving.
Va Code 18.2-374.1:1 (Distribution of Child Pornography)
Distribution of child pornography is very simple and very serious. A first offense means 5-20 years in prison not matter how old the defendant or the victim is. Distribution means reproducing, copying, selling, giving away, and electronically transmitting, etc. child pornography.
Copying a photo from your phone to your computer is distribution. Emailing yourself a copy is distribution, printing an image is distribution, showing a photo to a friend is distribution, and of course emailing, posting online, or forwarding child pornography is distribution. Very few people commit possession without also committing distribution.
In Virginia the government can charge a person with production, possession, or distribution for each photo or image. So if a 17 year old teen takes four dirty photos of his 17 year old girl friend with his camera phone and copies them to his computer, then he has committed 4 counts of production of child pornography, 8 counts of possession (4 photos on his phone and 4 on his computer) and 4 counts of distribution of child pornography.
Each count of production carries 1 to 20 years in prison, each count of possession carries up to 5 years in prison, and each count of distribution carries up to 5 to 20 years in prison. Consequently, the teenager in my example is facing 24 to 200 years in prison based on 16 counts felonies involving sex offenses against minors. Think long and hard about that next time you feel uncomfortable about invading your child’s online privacy.
Luke J. Nichols
Spectrum Legal Defense