Written by attorney Bram Louis Scharf

Texting nude photographs in Florida (Sexting), Proposed Legislation

The act of electronically sending sexually explicit messages or photos of oneself is generally referred to as “sexting." There are no statutes that specifically address sexting. Under current law, a person who “sexts" another could be charged with one of the various statutes that prohibit the creation, possession, and transmission of child pornography. In recent years, there have been increasing accounts of minors engaging in sexting. In 2007, 18-year old Phillip Alpert was charged with a violation of s. 847.0137(2), F.S., (transmitting child pornography) after he sent a nude photograph of his then 16-year old girlfriend to his girlfriend’s friends and family. The girlfriend had taken the photograph and sent it to Alpert. Alpert was sentenced to more than four years probation and was required to register as a sexual offender. The bill creates an un-numbered section of statute relating to the offense of sexting. It specifies that a minor commits sexting if he or she knowingly: (a) 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 himself or herself which depicts nudity and is harmful to minors; or (b) Possesses a photograph or video that was transmitted or distributed by another minor as described in paragraph (a). The bill provides the following penalties: - A first violation is a non-criminal violation punishable by 8 hours of community service or, if ordered by the court in lieu of community service, a $60 fine. Additionally, the court may order the minor to participate in suitable training or instruction in lieu of, or in addition to, community service or a fine. - A minor commits a 2nd degree misdemeanor, punishable by up to 60 days in jail and a $500 fine, for a violation that occurs after being found to have committed a noncriminal sexting offense. - A minor commits a 1st degree misdemeanor, punishable by up to one year in jail and a $1,000 fine, for a violation that occurs after being found to have committed a 2nd degree misdemeanor sexting offense. - A minor commits a 3rd degree felony, punishable by up to five years imprisonment and a $5,000 fine, for a violation that occurs after being found to have committed a 1st degree misdemeanor sexting offense. On March 2, 2011, the Criminal Justice Impact Conference determined that SB 888, which contains provisions substantially similar to this bill, would have an insignificant prison bed impact on the Department of Corrections. The bill also creates new misdemeanor offenses which could impact local jails. The bill is effective October 1, 2011.

Source: House of Representatives Staff Analysis of CS/HB 75 Offense of Sexting

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