Teen Sexting – An Epidemic as Well as a Criminal Offense
In this blog, the Indianapolis Criminal Defense Attorneys take a look at sexting. While the exchange of erotic information and/or pornographic material from one person to another has been going on for decades, with the advent of technology (specifically smartphones), the ease at which one can do it has grown exponentially. This has become ever so present not just amongst consenting adults, but midst our children and their friends as well. As statistics would show this is the case especially, and rather, unfortunately, amongst minors under the age of eighteen (18). In fact, according to PCs N Dreams, 20% of teens overall have “sent or posted nude or semi-nude pictures or video of themselves,” while 39% of teens have sent or posted “sexually suggestive messages” to another. Staggering yes, but many experts say that number is low.
Though most parents would like to place a proverbial finger in their ears and drown out the thought of such behavior occurring under their noses (and often on phones they themselves pay for), ignoring the issue solves nothing. In fact, ignorance is not bliss, especially when considering your child could be charged criminally for creating, sending, or receiving pornographic/sexual material — and, you might be surprised to hear that partial nudity is all it takes for criminal charges to follow.
We often hear, “So long as it’s consensual, it’s legal…right?” Wrong.
Under IC 35-42-4-4 and IC 35-49-3, it is a crime in Indiana to disseminate or share images depicting anyone younger than eighteen (18) years of age who is engaging in sexual conduct. Furthermore, it is a crime to simply possess any type of sexual image of anyone under the age of sixteen (16) years of age, regardless of whether it shows sexual conduct. Importantly to note, however, there is no demarcation as to the age of the offender— anyone can be subject to criminal liability, regardless of age and regardless of consent. This leaves criminal liability open to any age, at any time, under most any circumstances unless a defense applies.
While adults face harsher penalties under IC 35-42-4-4 and IC 35-49-3-3, juveniles can still be prosecuted as well. Most of the penalties for adults range from Level 6 felonies to Level 3 felonies depending on the facts involved.
To read a blog on the differences between juvenile offenders and adult offenders, click here.
Yet, the scary thing is that juveniles can be charged with the same offenses as adults as espoused in IC 35-42-4-4 and IC 35-49-3. While juveniles are not “convicted” of crimes but are rather “found true” of allegations, the ramifications can be huge. Not only can a child be placed into programs outside of the home, the child can be removed from school, CPS/DCS can get involved, the child can be placed in foster care, and/or placed in boys or girls school (the juvenile form of the Department of Corrections). While first-time offenders are often treated with less severe penalties, the punishment exacted often lies in the hands of the judge — and that’s not a bet worth gambling on.
The code does, however, allow for certain defenses in cases of juvenile sexting, yet they are very limited in nature. For example, it is a defense to send or receive said images so long as the sexual images are: (1) shared willingly with consent and without harassment or bullying, (2) contain images of only the sender or receiver of the images, (3) the sender and receiver are less than four years apart in terms of age, and (4) the sender and receiver are in some sort of demonstrable relationship. While many think this exception applies to most people — think again. The statute specifically states that if the images are sent to other parties by the original sender or original receiver, this defense is nullified.
For anyone that has watched the news, it’s easy to see why a defense to this prosecution is so hard to maintain. Inevitably, as applies in almost every single juvenile case, the juvenile is not emotionally mature enough (nor should they be expected to be at that age) to keep such private information to themselves. Whether it’s in a locker room full of friends or while riding in the car with a close friend, all too often juveniles feel the need to share sexual images of their classmates with others — even after they promised to keep it secret to their boyfriend or girlfriend. And, once that image is sent from one party to another, all bets are off and all defenses are negated. And, without fail, prosecution can follow. Even more frightening to consider is that once the image is shared, re-shared, tweeted, posted, etc., every single juvenile who receives it and shares it is committing a separate criminal act as well.
So, in the end, while as parents it would b easier to turn a blind eye and avoid the awkward conversation with our children, now is the time to act. What in old days may have been shrugged off as “youthful indiscretions” is now considered a criminal offense. With teen suicide on the rise from cyber bullying and with private-teen-sexting-gone-public situations, prosecutors are all too willing to pursue criminal charges against juveniles to teach others a lesson. And, the charges are non-discriminatory — children of all walks of life, ethnicity, income bracket, and family legacy are all susceptible to being pursued.
Therefore, if you, a child, or a loved one is facing a criminal arrest for sexting, give the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower, LLC, a call today. We are available 24/7/365 at email@example.com or by phone at (317) 870-0019.