Teen Sexting in Pennsylvania
In 18 Pa.C.S. section 6321, Pennsylvania has a law that addresses the possession and sharing of nude and sexually suggestive images of people ages 12 to 18 years old by a minor. This guide will explain the scope of the law, how violations are graded, and the prosecution process.
The Purpose of 18 Pa.C.S. Section 6321Smartphone use among teens, and younger children, is prevalent. It should be no surprise, that when teenagers are always armed with a camera and the ability to instantly publish their photos and videos that problems would arise.
"Sexting" is defined as an act by a minor of producing, possessing, and disseminating an electronic communication of a sexually explicit image of himself/herself or another juvenile. In short, it is the posting or an exchange of sexually explicit or suggestive images through text message on cell phones. Law enforcement typically becomes involved in sexting after an image is re-sent by the original recipient.
Pennsylvania's legislature passed 18 Pa.C.S. section 6321 to assist law enforcement with appropriately prosecuting juvenile sexting. Before this law was created juveniles were being charged under Pennsylvania's pornography statute, 18 Pa.C.S. section 6312, the sexual abuse of children, without consideration of the context of the allegation or offender's age and/or maturity level.
Understanding Section 6321The law only applies to individuals under 18 years of age. Anyone 18 or older who participates in sexting with a minor is liable for the sexual abuse of children under 18 Pa.C.S. section 6312. Anyone over the age of 18 who engages in consensual sexting with another adult is not violating the law provided that the images are lawfully obtained and are of individuals over the age of 18.
It is important to understand that this law prohibits any nudity that is shown for sexual stimulation or gratification. Under this law, nudity includes any genitalia, pubic area, or buttocks. However, nudity also includes the female breast below the top of the nipple. By this standard, cleavage is not nudity; however, a "sexually suggestive" display of a breast below the nipple is illegal under this rule. Covered male genitals is another matter if it is shown "in a discernibly turgid state." An erect penis is considered "nudity" even if it is clothed or otherwise covered. Thus, a photo of an obviously erect penis is illegal under this rule if depicted for sexual gratification.
Most importantly, a conviction of 18 Pa.C.S. section 6321 does NOT require the offender to register or report as a sexual offender. See 42 Pa.C.S. section 9799.14
It is also important to understand that this law does not cover all cases in which a minor is accused of making or sending nude or sexually suggestive images. Images that depict sexual intercourse, masturbation, or any other sex act are NOT prosecuted under 18 Pa.C.S. section 6321. Likewise, any sexually explicit image of a minor made or used for a commercial purpose does not fall under this rule. Also, if a current or former sexual or intimate partner disseminates an "intimate image" of the other (minor) partner with the intent to harass or alarm, the conduct is punishable by a separate offense (18 Pa.C.S. section 3131) and is graded as a misdemeanor of the first degree. Further, this law only covers the conduct and images of minors between the ages of twelve (12) and eighteen (18).
How Section 6321 is GradedThere are three gradings for violations of this law. The grading of the offense determines the range of punishment and eligibility for removing convictions from an individual's criminal history.
A summary offense is punishable by a maximum of 90 days jail and a maximum fine of $300.00. A minor is guilty of a summary violation when he/she knowingly:
- Send a sexually explicit image of himself/herself;
- Possesses a sexually explicit image of a minor 12 years of age or older; or
- Views a sexually explicit image of a minor 12 years of age or older.
Anytime a minor knowingly publishes or sends a sexually explicit image of another minor who is 12 or older, he/she commits a misdemeanor of the third degree (M3). An M3 is punishable by a maximum of 1 year in jail and a $2,000.00 fine.
If a minor makes or sends a "nude" photo or video of another minor without the knowledge or consent of the depicted minor and the photo or video is made or shared with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, it is graded as a misdemeanor of the second degree. A M2 is punishable by a maximum of 2 years in jail and a $5,000.00 fine.
Overview of Section 6321 ProcedureSummary Violations
Typically, a summary violation of section 6321 can be resolved with a single court hearing at the magistrate district court level.
When a summary violation of this law is charged, the judge (typically a magisterial district judge) should first consider the minor's eligibility to participate in a diversionary program called the adjudication alternative program. As part of the program the judge may order the minor to participate in an educational program which includes the legal and non-legal consequences of sharing sexually explicit images.
When a misdemeanor is charged for a section 6321 the offender will first meet with a juvenile probation officer for an intake meeting. At the meeting, the juvenile has a right to have a lawyer present. The offender may decide to retain a private attorney or he/she can seek representation through the Public Defender's Office at no cost. Parents and/or legal guardians are also able to attend the intake meeting. These meeting are usually informal; however, there are important decisions to make prior to attending. The accused should be counseled on whether or not to discuss the allegations with the probation officer.
In general, the purpose of the intake meeting is for probation to determine how the case should proceed. A juvenile case can be disposed of with: an informal adjustment (a recommendation the allegation is dismissed or dismissal upon completing agreed upon conditions), a consent decree (a more formal diversionary program), or a formal hearing before a judge. If a judge finds an accused delinquent, the offender may be given a term of probation or placed in a detention facility.
Tips for 18 Pa.C.S. Section 6321 Investigations / ProsecutionsIf your child is being investigated about an image he/she may have sent, viewed, or possessed, you should speak to an experienced criminal defense lawyer as soon as possible. Speaking with a defense lawyer is important because every case is different. For example, the facts of some cases may justify speaking and/or cooperating with the police. In some cases, doing so can help to reduce the charges and resolve the case. It is important to explain all the details of a case to the lawyer so he/she can offer appropriate advice.
Without a Lawyer, Remain Silent
You and your child have the right to remain silent. You should exercise your right and your child's right not to speak with the police or anyone else when questioned. While I respect the police and the important and difficult job they have, speaking with them is unlikely to help your situation. However, speaking to the police will typically help them to prove their case against your child.
Require a Search Warrant
Likewise, for the police to legally search the contents of a cell phone, a valid search warrant is generally required. Do not offer your consent to the search. Make the police apply for and get a warrant to seize and search the phone.
Remember that the Commonwealth has the Burden of Proof
It is important to remember the Commonwealth bears the burden of proof in these cases. Your child has nothing to prove relevant to this case. Likewise, be aware of the intent needed to establish criminal liability under this rule. The prosecution is required to show a mental state that is at least "knowingly." Accordingly, if a minor charged with violating this law and can show that he/she unknowingly sent, possessed, or even viewed a sexually explicit image, the minor is not criminally liable under this statute. Moreover, to convict a minor of the most severe version of this crime, the Commonwealth must show the accused acted with the wrongful criminal intent the statute requires.
Prevention StrategiesIt is further recommended that:
1. Parents and Guardians must assess if a minor is capable of responsibly using any technology.
2. Parents and Guardians should consider alternatives to smart phones and other personal "smart" mobile technology.
3. Parents and Guardians who provide technology to children must discuss responsible usage with the child and inform the child of the emotional, legal, and other consequences of taking sexually suggestive images and sexting.
4. Parents should monitor a child's technology use and implement consequences for any misuse.
5. Schools must develop clear anti-sexting policies, make students aware of the policies, and strictly enforce the policies.
6. Police agencies and our courts must make it clear that they strictly enforce 18 Pa.C.S. section 6321.
7. Our courts must monitor the effectiveness of anti-sexting education and diversion programing, seek to improve it, and update it to keep it technologically relevant and trend current so minors are more likely to relate to it.