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May 2 2013
Sexting Laws & Legal Information
Sexting Information and History
We will aggressively defend clients from Sexting related charges. We will travel throughout the state of Michigan - including Detroit, Lansing, Grand Rapids, Ann Arbor, Oakland County - to defend against these charges. Call us today!
As the law struggles to keep pace with advances in technology, Michigan Criminal Defense Attorneys are seeing a rapid increase in cases which involve Sexting. Sexting is the sending of sexually explicit messages or photos, usually done on I-phones, Droids, and other smart phones. A typical sexting scenario is when a female takes a picture of herself partially or fully nude and sends it to a boy. You might not think this would constitute a crime when it involves a person sending images of themselves, but there are countless scenarios where it can be prosecuted, and the offender could end up on the Michigan Sex Offender Registry.
Some Michigan prosecutors are prosecuting teenagers in Michigan for sexting under the child pornography laws. These laws were originally created before smart phones and other instant messaging technology was readily available to teenagers. They were intended to criminalize the adult behavior of manufacturing child pornography, distributing child pornography, or possessing child pornography. However, the irony of prosecuting children for violating a law that is supposed to protect them is not lost on many defense attorneys, who believe that prosecuting teen sexting under these laws can result in overly harsh judicial treatment of child offenders.
In order for the Michigan child pornography laws to apply to sexting, the sexual image must be of someone under the age of 18. It is interesting to note that under Michigan law, 16 year-olds and 17 year-olds are old enough to legally consent to sex, yet are not legally old enough to simply send a semi or fully nude picture of themselves to someone. Also, in order to qualify to be child porn, the photo must meet the definition for child sexually abusive material. This essentially means that it must be erotic in some way. Whether or not a photo meets this definition is decided on a case-by-case basis in Michigan, but generally all it takes is for any of the genitals to be showing and it is considered child pornography.
Sexting Charges and Punishments
The teen who takes a sexual photo of himself or herself can be charged with manufacturing of child pornography, which is a felony that carries up to a 20 year prison sentence or a fine of up to $100,000, or both. The person sending the image is not the only one that is in danger of criminal charges. Let’s say the teen sends that image to her boyfriend. If the boyfriend keeps that image on his phone or computer he can be charged with possession of child pornography, regardless of whether or not he is younger than 18 years old. That is a felony and he could go to prison for up to 4 years or pay a fine of up to $10,000, or both. If the boyfriend sends the image on to his friends, which frequently happens, the boyfriend could now also be guilty of distributing child porn, which is a felony that carries up to 7 years in prison, a fine of up to $50,000, or both. The friends could now be charged with possession of child pornography if they keep the image. You can see how this snowball effect could result in many people being charged with a crime from just one image.
As if this wasn’t bad enough, Michigan law criminalizes the use of a computer in the commission of a crime. This can carry maximum periods of incarceration from 1 to 20 years. This is yet another example of a law that has difficulty keeping up with technology. This Michigan law defines a computer as:
any connected, directly interoperable or interactive device, equipment, or facility that uses a computer program or other instructions to perform specific operations including logical, arithmetic, or memory functions with or on computer data or a computer program and that can store, retrieve, alter, or communicate the results of the operations to a person, computer program, computer, computer system, or computer network. MCL 750.145(d)(9).
Arguably, many of the cell phones that parents provide their children today would qualify under this definition.
Teens who engage in sexting could have their lives changed forever. Not only because of the prison sentences and fines that come along with a conviction for sexting, but also because of the requirement that they register as sex offenders on Michigan’s Sex Offender Registry. The Sex Offender Registry is a public list of people who have been convicted of sex crimes. Being on this list can make it very hard for anyone to live a normal life. They are subject to ridicule from the public and they must maintain constant contact with the Michigan government. They cannot live, work, or loiter near a school, and it is very hard for them to find good jobs once potential employers find out they are on the Sex Offender Registry.
These are all pretty hefty legal penalties for an activity that teens may not even know is illegal. Recent studies show that about 20% of teens have engaged in sexting. This statistic is not surprising when you consider the fact that most teens now own cell phones and therefore always have access to their own cell phone camera. It is up to parents, teachers, and law enforcement to talk to kids about the dangers of sexting. Of course, those dangers can be social, as well as legal. These images often spread like wildfire around the school, especially because texting is primarily how today’s youth communicate with one another. As you can imagine, it is difficult for a teen to go to school each day, knowing that he or she will be teased by his or her peers. There are documented cases of teens committing suicide after images of their nude bodies were sexted throughout their school.
School officials are required by law to report sexting incidents to Michigan law enforcement. Naturally, any adult who retains an illegal image on their own phones or computers can be charged with possession of child pornography. For now, it is up to the local prosecutor how aggressively they want to pursue sexting cases.
What should I do if find nude images on my child’s phone?
The short answer is: consult with a knowledgeable attorney. If your child is facing this situation, it is critical to hire an attorney to represent you who has experience with sex crime laws in Michigan. We have successfully defended many people accused of crimes related to child sexually abusive materials. Parents should not try to deal with this on their own. If your child is involved in sending and receiving nude or suggestive photos, the case should be evaluated to assess the potential for criminal prosecution. Often, the first step in a criminal prosecution for Criminal Sexual Conduct or some other felony occurs when parents find an image on their child’s phone and take action without knowing all the possible consequences. This is why you need to consult with a knowledgeable attorney first. We represent sex crime defendants all over the state of Michigan. Call us day or night at 866-766-5245. We offer a free consultation to those who are concerned about potential prosecution of themselves or family members.
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