Sexting: What Happens When Minors Use Cell Phones to Send Sexually Explicit Videos of Other Minors

Last year, two teens were arrested in Long Island, NY after a 14-year-old boy had a sexual encounter with an underage girl while another boy filmed the incident on his cell phone. The teens dispersed the video to other students and were subsequently arrested and charged with felonies. Of course, the facts of this particular scenario seem to be common sense. It should have been obvious to the two teen boys that their actions were wrong, but the interesting point is that the school suspended all students who received the text message.

This story creates more than one interesting legal question. For starters, can the boy who disseminated a sexually oriented video of underage kids be charged with distribution of child porn when he himself was one of the underage kids? Can the kids who received the video be charged with possession of child pornography?

The New York Penal Code Provides Strict Standards for Child Pornography

In the state of New York, Article 263 of the New York Penal Code dictates penalties involving child pornography. Section 263.10 discusses the definition of child pornography distribution. It provides that a person is guilty of the promotion, i.e. distribution, of sexual performance by a child if he or she knows the character of the performance and then promotes it. Accordingly, the two teens that took the video and then sent it to other minors violated the law under Article 263 of the Penal Code.

Sections 263.11 and 263.16 provide that in order to be guilty of possessing child porn, that person must know the character and content of the sexual performance and he or she must knowingly have access with the intent to view the illicit materials. So, in this instance, could the 20 kids who received the video also be guilty of possessing child pornography? There is an argument to be made that if the any of those children who received the video decided to keep the video with the intent of watching it again, then they are perhaps guilty of possessing a sexual performance of a child under New York law. If they subsequently sent the video to anyone else, then they too have disseminated and thus promoted the illicit content.

Laws Regarding Sexting are Still Developing

The two scenarios described above are not an exhaustive list of the charges that could be brought against the minors involved in the events described above. The legal arguments become increasingly complex and as the statute currently stands, there are no specific affirmative defenses for the situation. Arguably, much of what these minors did falls outside of your typical sexting scenario; however, cell phones played a significant role in heightening the seriousness of this case.

Cell phones are relatively new technology and as such, the laws have naturally been playing catch up. We didn’t start seeing sexting laws until the late 2000s, and even still not all states have adopted teen sexting laws. Phillip  J. Murphy understands the increasingly complex legal environment of criminal defense in New York. If you are afraid you may have violated the law, or need legal advice, call today for a free consultation.