My children are still small, but I’m already anticipating the conversations I’ll need to have with them about sexting. That conversation is simple and goes like this: Don’t. Sexting, or sending sexually suggestive or explicit images or videos of yourself, is unwise in part because, in this age of smartphones, it’s impossible to know who may gain access to the content. Many cases of horrendous teen bullying involve the spread of images that originated as sexy shots sent to a boyfriend in a spare moment. But there’s a second reason I’ll be telling my teens to avoid the temptation to sext. Simply put, sexting can land minors in jail.
Because minors are children, many states consider sexting the creation and distribution child pornography. And yes, that includes a sixteen-year-old girl taking the image of herself, not just those who might unethically then forward her image to others. State law currently varies in how sexting is handled, but a bill being considered by Congress might add some uniformity—and slap minors with a minimum fifteen years in jail for sending a suggestive picture of themselves to a boyfriend or girlfriend.
Section 2251 of title 18, United States Code, currently reads as follows:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e)…
If the legalese is confusing you, read the sections in bold as though they were one continuous sentence. The current statute penalizes individuals who coerces a minor to engage in sexually explicit conduct for the purpose of producing images. (Sexually explicit conduct is defined as both sexual acts or simulations and “lascivious” nudity.) This seems fairly straightforward. Congress, however, is preparing to change it. Why? To close loopholes, ostensibly. However, as Reason explains:
…in the only “loophole” case he has pinpointed, it’s overreaching federal prosecutors who bungled bringing a bad guy to justice, not some fundamental flaw in our criminal code. In that case, 19-year-old Anthony Palomino-Coronado was accused of molesting his 7-year-old neighbor repeatedly over the course of several months. In investigating the case, police discovered one photo of the abuse that had been taken and subsequently deleted from Palomino-Coronado’s phone.
Combined with the victim’s testimony, the photo should have guaranteed state police little trouble in trying to prosecute Palomino-Coronado for sexual abuse of a child. But federal prosecutors preempted such a prosecution by deciding to instead try Palomino-Coronado in federal court for producing child pornography.
It was a bad call … federal law against producing child pornography requires a minor to have been recruited “for the purpose of” producing photo or video. In this case, the court concluded, the longterm pattern of abuse, combined with the fact that only one explicit image was ever taken (and subsequently deleted), meant the perpetrator’s purpose was not producing child porn but, rather, his own sexual gratification. If the feds had simply let the state handle the case as one of sexual abuse, Palomino-Coronado would probably be behind bars right now; instead, they overreached with the child porn charge, and now he’s free.
In other words, the feds tried a child molestation case as a child pornography case when they shouldn’t have, because federal statute (as outlined above) only penalizes the creation of sexually explicit images of children as child pornography when an individual coerces a child into engaging in sexually explicit conduct for the purpose of producing images. Now yes, this could be finessed. An individual who both molests a child and takes sexually explicit pictures of the child should not be able to avoid a child pornography charge by arguing that they were not coercing the child into sexually explicit conduct for the purpose of producing images.
The trouble is that the proposed amendment to the statute is incredibly broad.
Subsection (a), which I quoted above, would be amended to read:
(a) Any person who, in a circumstance described in subsection (f), knowingly—
(1) employs, uses, persuades, induces, entices, or coerces a minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, or transmitting a live visual depiction of such conduct;
(2) produces or causes to be produced a visual depiction of a minor engaged in any sexually explicit conduct where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct;
(3) transmits or causes to be transmitted a live visual depiction of a minor engaged in any sexually explicit conduct;
(4) has a minor assist any other person to engage in any sexually explicit conduct during the commission of an offense set forth in paragraphs (1) through (3) of this subsection; or
(5) transports any minor in or affecting interstate or foreign commerce with the intent that such minor be used in the production or live transmission of a visual depiction of a minor engaged in any sexually explicit conduct,
shall be punished as provided under subsection (e).
As you can see in the sections I highlighted above, this statute would apply to a minor teenager who simply asks a boyfriend or girlfriend for a sexy picture that involves nudity, as well as to a minor teenager who takes a sexually suggestive nude picture of themselves, whether or not they distribute it. It would also apply to a minor teenager who masturbates, simulates sexual activity, or engages in “lascivious” nudity while having a conversation with their significant other via Skype or another such medium.
And subsection (e) imposes a mandatory minimum fifteen-year prison sentence.
It is not as though this is a mere oversight on the part of Congress, either. The committee report contained dissenting views outlining the problem and referenced sexting directly; testimony during House hearings on the bill did the same. During hearings, Rep. Scott of Virginia made the following comments before the House:
This law is particularly appalling because it would apply to people who I think we should all agree should not be subject to these long mandatory minimum sentences. I am talking about teenagers. Teenage sexting is widespread. Under this law, teenagers who engage in consensual conduct and send photos of a sexual nature to their friends or even to each other may be prosecuted and the judge must sentence them to at least 15 years in prison. The law explicitly states that the mandatory minimums will apply equally to an attempt or a conspiracy.
That means if a teenager attempts to obtain a photo of sexually explicit conduct by requesting it from his teenage girlfriend, the judge must sentence that teenager to prison for at least 15 years for making such an attempt. If a teenager goads a friend to ask a teenager to take a sexually explicit image of herself, just by asking, he could be guilty of conspiracy or attempt, and the judge must sentence that teenager to at least 15 years in prison.
Under the Federal code, the term “sexually explicit conduct” includes actual or simulated conduct. That means if a teenager asks another teenager for a photo simulating sex, even if the minor is fully clothed, that attempt would violate the law and the teenager must get a sentence of at least 15 years mandatory minimum for making that attempt.
This law does not allow the judge to consider whether or not the conduct may have been consensual between minors. This circumstance is irrelevant when the sentence is mandatory.
In Scripture, Romans 13 refers to the governing authorities as “God’s servants, agents of wrath to bring punishment on the wrongdoer.” I, for one, believe we have a moral obligation, as any just government should, to defend the defenseless.
My legislation presents a simple fix and updates title 18 of the U.S. Code…
…I would like to address the comments regarding the current law on mandatory minimum penalties under the production of child pornography statute. There is simply no evidence that Federal prosecutors are abusing this statute. I think we should all recognize that producing child pornography is a horrific crime. …
It is also important that there is no confusion about one fact: The very creation of these images is repulsive, regardless of whether or not the abuse was done with a specific intent of creating an image or if the intent to memorialize this conduct was a secondary thought. Consider the facts of the case that led to this bill. …
Frustrated, Rep. Jackson Lee of Texas spoke next, repeating Rep. Scott’s objection:
[W]hile the bill is well intended, it is overbroad in scope and will punish the very people it indicates it is designed to protect: our children. H.R. 1761 would expand and modify the meaning of sexual exploitation of children, thereby granting new offenses that may be prosecuted under section 2251 of the Federal criminal code, which generally prohibits the production of child pornography.
… Based on the language in this bill, to criminalize the knowing consent of the visual depiction or live transmission of a minor engaged in sexually explicit conduct, a teenager sexting another teenager could be swept up under the statutory power of this new measure.
Research shows that 91 percent of teenagers, tweens, have access to the internet and/or a smartphone. Hence, given the rampant advancement in technology and, consequently, its usage among this demographic, we must exercise prudence when introducing legislation that is seemingly ignorant of the growing trend of communication among teenagers.
H.R. 1761 ignores the life-altering impact it would have on our juveniles who engage in otherwise stupid and immature behaviors and, in most cases, consensually explicit sexual conduct if we begin to criminalize such conduct. While this bill seeks to protect minors—and I congratulate the proponent for that intent—in the same vein, it drastically alters the penalty for minors who may face mandatory minimums in sentencing, and, therefore, it is flawed in its design and intended purpose.
Let me be very clear: Legislators have very good intentions, but we cannot stand on the floor and guarantee how it will be interpreted. We cannot guarantee that one teenager will not be caught up in this new legislation. Court interpretation, prosecutors’ interpretation, all that will be subjected to mandatory minimums, which is in the underlying bill.
After this, Rep. Johnson finally responded rather than evading the point:
For one thing, there has been no evidence that the cases referenced by the gentlewoman involving conduct between minors are being prosecuted at the Federal level. I have not seen even one that has been cited. The point here is that prosecutorial discretion has been a sufficient buffer.
In committee, our colleagues on the other side have invoked stories of juvenile offenders being charged for consensual conduct and placed on sex offender registries unjustly; however, these are all cases that were prosecuted at the local level. Not one that has been mentioned has been a Federal case.
It is important to note that, for offenders under 18, the Federal Department of Justice policy on charging juveniles means that juvenile prosecutions very rarely occur, and only if no State court can assume jurisdiction.
In fact, certification from the Attorney General himself is necessary to proceed against a juvenile.
Again, I know of no such case in which a juvenile has been prosecuted federally under any child pornography statute. So while we appreciate and understand the concerns about mandatory minimum sentencing and its abuse, particularly with the drug statutes, again, it is important to reiterate here, that is not the case with child pornography.
Rep. Conyers, who spoke next, was not satisfied with Rep. Johnson’s response:
Mr. Speaker, the Members of the House cannot rely on prospective discretion to protect juveniles under this statute. We simply can’t rely on it, participate in, given the new policy of the Attorney General. We are under a new regime here at the Federal level, and I can’t depend on relying on the prosecutorial discretion to protect juveniles under this statute.
And now we’re back to Rep. Johnson, who was himself becoming frustrated:
Madam Speaker, the concerns stated today are misplaced. The child pornography statutes have never been the subject of abuse by Federal prosecutors, and there is no evidence that that would happen in the future. However, the abuse that is being allowed and that we must address today is that of our children, and that abuse is being allowed because of a loophole that was, sadly, created by a Federal court.
Still unsatisfied, Rep. Jackson Lee proposed an amendment that would create a “Romeo and Juliet” exemption for juvenile offenders engaged in consensual activity. This amendment was narrowly rejected. After this a vote was called, and H.R. 1761 passed Congress. Next it will come before the Senate.
Depending on prosecutors not to prosecute juveniles for sexting is a sorry excuse, especially coming from a “tough on crime” Trump-supporting Republican. Weren’t conservatives at one point supposed to be all about small government? How does it make sense to give the the judicial system a mandate to prosecute minors for sexting on the presumption that they won’t use it? That is the antithesis of small government!
When my children reach their teens, I intend to inveigh against sexting not only because it is a bad idea, but also because, in the hands of an overzealous prosecutor, they could face fifteen years in federal prison for a harmless youthful indiscretion.
If Rep. Johnson really thinks this statute would never in a million years be used against juveniles, he might want to check how similar state statutes have been used. He doesn’t get to choose how the text of his bill is interpreted or implemented.