This is a common crime now with the internet, and many people are getting arrested. A lot of people are going into custody and many people have to register as sex offenders because they send nude photographs to minors.
Often, the defenses are that they believe that the minors are 18 years old or older. Many clients tell me they are going on sites where you have to be at least 18 years old.
So, how could a minor be on there, and obviously, what ends up happening is that the police are on there and they start talking to people they believe are sexual predators.
They tell the person how old they are. They ask the person for a nude photograph, and now the person is in a whole world of problems, having to potentially register as a sex offender and all the bad things that come along with a sex crime offense.
The bottom line is, don't send nude photographs to anyone on the internet for various reasons. But if there's any chance that you could be sending a nude photo to a minor, you put yourself at risk. Because what ends up happening a lot of times is the minor's parents will get ahold of the photograph, and now they're going to call the police.
Many people are being threatened and extorted because they're sending nude photographs of themselves to underage individuals. Then unscrupulous family members are trying to get them to send them money.
They will claim the money is for them not to go to the police, and sometimes people are running scams against individuals pretending to be minors and then trying to extort money from them. Our California sex crime defense lawyers will review this topic further below.
What are the Sexting Laws in California?
Sexting is exchanging sexually explicit or nude photographs using a mobile device. Many states have specific laws covering sexting with minors, but not California.
Teenagers often use their cell phones to send or receive naked, sexually explicit pictures and videos, called “sexting.” However, sexting does not always involve teenagers sending nude photos to each other, and you need to know the direct association between sexting child pornography laws.
Sexting is usually legal between consenting adults, but when a minor gets involved, then laws are typically violated. Sexting with minors could be prosecuted under California's child pornography and exploitation laws, such as the following:
- California Penal Code 311 PC defines the crime of knowingly possessing child pornography if the defendant sexts with a minor and then saves sexually explicit images of their mobile device;
- California Penal Code 311.3 PC defines the sex crime of knowingly developing or exchanging any media that depicts somebody under 18 years of age engaging in the act of sexual conduct.
- California Penal Code 288.2 PC defines the crime of sending harmful matter to a minor with intent to seduce them. In other words, sending images to sexually arouse or seduce them. This applies if the message was sent by text, email, and other methods of communication.
It is not a valid defense that a minor gave consent for sexting as anyone under 18 years old can't legally consent under California law.
What are the Federal Sexting Laws?
Sexting could be a crime under federal law under certain conditions. Prosecutors have several statutes they could use to pursue criminal charges.
For instance, under the Exploitation of Children Act of 2003, it's illegal to use a computer to send or receive the following:
- Obscene depiction of minors engaged in sexually explicit acts;
- Images of a minor engaging in sexually explicit conduct, or
- Any material containing child pornography images.
Federal child pornography laws are covered under 18 U.S.C. § 2252. Sexual exploitation of children is covered under 18 U.S.C. § 2251 and described as attempting to induce or persuade a minor to engage in sexual acts for the purposes of making a video or other images.
What are the Defenses for Sexual-Related Cases?
So, the bottom line is this, never send a nude photograph of yourself to anyone, especially on the internet, because you never know what the results of that can be.
And if you have been caught sending a nude photograph of yourself to a minor, obviously, immediately get to a criminal defense attorney like me, who's been doing this now for 30 years.
I know how these cases are investigated. I know how these cases are prosecuted, and you want to get an attorney on your team right away before someone approaches you, and you end up incriminating yourself further. So you can start taking the right precautions with a potential criminal case coming down the pike.
Sometimes you do have a defense to these crimes. If you believe you were sending your photograph to somebody 18 or older, that could be a defense to the particular crime.
What it boils down to is, first, the prosecutors have to prove that you're sending a photograph to someone underage, and then they have to prove that you either knew or reasonably should have known under the circumstances that the person was under the age of 18. A lot of times, that's difficult for them to prove.
But mostly, where I see this coming up is people are in chat rooms and various other social media venues. They're communicating with police officers, and the police officers know what to say to get the person wrapped up in a sex crime offense.
They're going to tell you they're underage and a lot of people, for whatever reason, still decide to send a nude photograph, try to meet with people, communicate with people who they are specifically told are minors.
If that ends up occurring, you should get to an attorney immediately. Hire that attorney and let them do the talking, and stop putting yourself in a position where you could be arrested and face some of the worst charges possible.
If you need help, pick up the phone. Ask for a meeting with Ron Hedding. I've worked for the District Attorney's office. I've worked for a Superior Court Judge, and I've been a criminal defense attorney for the past 28 years defending people just like you. The Hedding Law Firm is located in Los Angeles County and offers a free case consultation.