Stuck in the Past: Child Pornography Laws in the Age of Sexting

Introduction

As technology has evolved with more social interactions through apps and texting, sexting has become a more common practice.[1] Sexting can occur between significant others or even with strangers in hopes of casual sexual encounters. While the number of people sexting is growing, problems arise when people under the age of 18 partake in it. Despite the sender voluntarily sending the image, the person receiving the sexually explicit image is now in possession of child pornography and the sender suddenly becomes a distributor.[2] The person taking the photo produced child pornography, sending the photo is distribution, and having the image on a phone is possession.[3] 1 in 7 minors send sexts, and 1 in 4 minors admit to being on the receiving end of a sext.[4] Some states took measures to address the issue of minors partaking in sexting but Kentucky has lagged behind in any such changes.[5]

Kentucky currently has no specific sexting laws, only statutes on child pornography/sexual exploitation of a minor.[6] Kentucky needs to update current statutes to implement a separate charge or rehabilitation effort for minors who voluntarily distribute their sexts. Child pornography laws are meant to protect minors but could be used to levy substantial charges against minors and unduly impact the rest of their lives.

Child Pornography Sentencing Schemes

Sexting, at the state level, has been handled in a variety of ways.[7] Some states have adapted to the growing concern of minors sexting and others have not evolved with the technology.[8] States that have adapted to the change have taken different approaches, including separate charges for minors.[9]

Vermont, for example, adopted a separate offense for minors who disseminate indecent material or receive it.[10] For first time minor offenders caught voluntarily sending or receiving sexts, the charge is referred to family court for adjudication.[11] The judge has the discretion to refer the minor to a deferment program in lieu of sentencing.[12] Subsequent charges may either be referred to family court or charged under Vermont’s original sexual exploitation of children statutes.[13]Minors caught sexting are not required to be registered in the state sex offender registry.[14] The charges under this statute will also be expunged upon their 18th birthday.[15]

Kentucky has made no changes to their laws to address minors sexting.[16] If a minor gets caught sending/receiving sexually explicit images, the images fall squarely under the child pornography statutes in Kentucky.[17] The Kentucky statutes make no designation or distinction as to whether the producer or receiver is an adult or minor.[18] Therefore, a minor sexting through any medium violates Kentucky’s prohibition of producing, distribution, and possession of child pornography.[19] For production of child pornography, the current charge ranges from a Class B to a Class C felony depending on the age of the offender.[20] For distribution, the first charge is a Class D felony with all subsequent offenses being Class C felonies.[21] For possession, the current charge is a Class D felony.[22] A Class B felony charge carries a sentence of 10-20 years, a Class C is between 5-10 years, and a Class D is between 1-5 years.[23] The final level of punishment is inclusion on the sex offender registry.[24]

Protecting the Minor vs. Preventing the Spread

Laws addressing child pornography or sexual exploitation of minors are meant to deter crimes against children, but also to protect minors.[25] To combat the rising number of minors sexting, Kentucky must balance protecting the minor and addressing the spread of underage sexual imagery. Adopting Vermont’s statute in Kentucky can strike such a balance. The change in policy, like Vermont, would create protections for minors, and leave penalties in place for offenders. Kentucky “would continue to punish sexting committed through force, coercion, or other pressures . . . ”[26] Minors would just not have the legal jeopardy of being placed on the registry “for engaging in a perverted, albeit new, form of courtship.”[27]Current Kentucky laws could be used against individuals the legislature intended to protect,[28] resulting in more harm than protection.

The Vermont sentencing scheme promotes deterrence and a chance for rehabilitation.[29] The change allows the judges and prosecutors substantially more discretion in adjudicating the offender without highly punitive sentences.[30] Minors are referred to family court under the Vermont scheme.[31] Family court is focused more on rehabilitation than criminal courts.[32] The sentences in family court are less extreme, and the judge can sentence the offender to a deferment program in lieu of other punishment.[33] The deferment programs can educate on the severity of sexting and sexually explicit imagery as well bringing to light possible future legal complications.

Altering sentencing schemes for minors who choose to send sexts protects them from the harmful ramifications of laws originally intended to protect them from predators. Sexual exploitation and child pornography laws were meant to “end the abuse and exploitation of children” and to “eradicate the production” of child pornography.[34] Minors may well understand child pornography is a serious offense, but with sexting being so prolific may not connect sexting as being considered child pornography.[35] Sexting could be consensual between minors, but child pornography screams exploitation. 

Minors lack the maturity to understand the adult legal problems, which is why the laws seek to protect them from sexual exploitation.[36] The minor could not only be burdened with a substantial prison sentence, there is the matter of the criminal record and the registration on the state sex offender registry. A case in Michigan forced a child onto the sex offender registry, and that registration followed him through his whole life.[37] Parents tried to prevent him from walking at graduation as soon as they found out.[38] The restrictions on where he could live made keeping housing difficult and even got him arrested for not promptly updating his address.[39] He eventually lost custody of his daughter and even his job because of the stigma of his placement on the registry, despite being a doting father and hard worker.[40] The stigma and record follow and control almost all aspects of the offender’s life.[41] Child pornography laws should not create high penalties for minors when those criminal laws are meant to combat pedophiles.[42]

Conclusion

Sexting has become a more common occurrence across the board but is most troubling when done by minors. Minors are not of the age to appreciate their actions and may also be unaware of the potential legal actions that may follow. Child pornography laws were established to protect minors but now may uproot their whole lives with the sending or receiving of a sext. By adopting a statute like Vermont did for dealing with minors sexting, Kentucky can target the proliferation of sexting without substantial hardship on the minor. The statute could focus on rehabilitation of the minor’s acts, instead of a more punitive approach. Kentucky would finally be able to strike a balance between protecting the minor and preventing the spread of minors sexting through less severe outcomes.

 FOOTNOTES

[1] When this blog refers to sexting, it is discussing the voluntary sending and receiving of images that contain  

   nudity/sexually explicit imagery.

[2] Robert Mummert, Sexting and the Law, 38 W. St. U. L. Rev 71, 79-81 (2010).

[3] See generally Ky. Rev. Stat. Ann. § 531 (West 2020).

[4] Sheri Madigan et al., Prevalence of Multiple Forms of Sexting Behavior Among Youth, 172(4) JAMA Pediatrics  

    327-335 (2018). 

[5] Sexting Laws Across America, Cyberbullying Res. Ctr. (2020), https://cyberbullying.org/sexting-laws.

[6] See generally § 531. 

[7] Sexting Laws Across America, supra note 5. 

[8] Id.

[9] See generally Vt. Stat. Ann tit. 13, § 2802b (West 2020).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Vt. Stat. Ann tit. 13, § 2802b (West 2020).

[15] Id.

[16] See generally Ky. Rev. Stat. Ann. § 531 (West 2020).

[17] Id.

[18] See generally Ky. Rev. Stat. Ann. §§ 531.320, 531.335 (West 2020).

[19] See generally Ky. Rev. Stat. Ann. §§ 531.320, 531.340 (West 2020).

[20] Ky. Rev. Stat. Ann. § 531.320 (West 2020).

[21] Ky. Rev. Stat. Ann. § 531.340 (West 2020).

[22] Ky. Rev. Stat. Ann. § 531.335 (West 2020).

[23] Ky. Rev. Stat. Ann. § 532.020 (West 2020).

[24] Ky. Rev. Stat. Ann. § 17.510 (West 2020).

[25] Commonwealth v. Davidson, 595 A.2d 198, 215 (Pa. 2007).

[26] Vermont Looks to Decriminalize Teen Sexting, Nat’l Coalition Against Censorship (April 14, 2009), 

    https://ncac.org/news/blog/vermont-looks-to-decriminalize-teen-sexting (quoting Vermont State Senator Richard 

    Sears on what the change in law does not cover).

[27] Id (quoting Vermont State’s Attorney Donovan about the practice of sexting).

[28] See generally New York v. Ferber, 458 U.S. 747, 749 (1982); See generally Benjamin Vernia, Annotation, 

    Validity, Construction, and Application of State Statutes or Ordinances Regulating Sexual Performance by Child, 

    42 A.L.R.5th 291 (1996).

[29] Mummert, supra note 2, at 86.

[30] Id.

[31] Vt. Stat. Ann tit. 13, § 2802b (West 2020).

[32] Mummert, supra note 2, at 86.

[33] Title 13, § 2802b.

[34] Commonwealth v. Davidson, 595 A.2d 198, 215 (Pa. 2007).

[35] In re C.S., 2012 Pa. D. & C. Dec. 1, 10-11 (2012).

[36] Id.

[37] Raised on the Registry, Human Rights Watch (May 1, 2013), https://www.hrw.org/report/2013/05/01/raised-

    registry/irreparable-harm-placing-children-sex-offender-registries-us.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Mummert, supra note 2, at 84.