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Cell phones and “sexting”

By Jeff Terrill

Fort Wayne Reader


Do you have a cell phone? Do you know a teenager with a cell phone? Are you young enough that you have friends who are under the age of eighteen? Are you the parent or grandparent of a teenager with a cell phone? If you answered yes to any of the above questions, keep reading.

“Sexting” can be defined as the act of sending sexually explicit photographs or content from one mobile phone to another. Send a quick message from your phone to a friend and that is called a text. Mix in a bit of sexually explicit content and you are now sexting. Sexting is not inherently illegal. For example, two adults might send each other photographs of themselves in various stages of nudity. Sexting, however, can quickly turn illegal when one or more minors are involved. Most sexting begins as a form of flirting. Some people consider sexting as an intimate act of trust. A lot of teens, young adults and even parents don’t understand that sexting can serve as the basis for public humiliation, damage to reputations and even criminal prosecution.

A 2009 Pew Research Center study found that 75% of kids ages 12 to 17 owned a cell phone. Of those, 4% of the kids admitted to sending sexually suggestive photographs of themselves to others, while 15% of those kids acknowledged receiving sexually suggestive texts. Today, even more teens own cell phones and I would expect those numbers to be even higher.

It seems that every few months, a new story breaks about one or more teens getting prosecuted for sending or receiving sexually explicit photographs of a fellow student. Fact-patterns vary, but one common scenario goes a bit like this: a fifteen year old high school 10th grader takes a photo of himself with his cell phone camera standing naked in his bedroom. He sends the photo to his fifteen year old girlfriend. Weeks later, the two get into an argument. Angered and upset, the fifteen year old ex-girlfriend forwards the photo of her naked ex-boyfriend to some of her friends, one of whom happens to be an eighteen year old high school senior. Within hours, the photograph is forwarded to many more people and even posted on Facebook. A mother picks up her daughter’s cell phone to check messages and sees the photograph of the naked teenager whom she recognizes. That same mother keeps possession of her daughter’s cell phone and calls the parents of the boy shown in the photograph to inform them about what she has seen.

In the scenario above, the fifteen year old male teenager who photographed himself naked and then sent the photo to his girlfriend might have committed the crimes or delinquent acts of Possession of Child Pornography, a Class D felony, and Child Exploitation, a Class C felony. Even though the photograph was of himself, the law does not exempt a child under sixteen years of age from possessing a sexually explicit photograph of himself. Moreover, when he sent the naked image of himself, he disseminated the photo to another person.

Effective July 1, 2011, the applicable law was made a bit more lenient under certain circumstances. In Indiana, a teenager might now have a statutory defense to a charge of possessing or disseminating child pornography if (1) a cell phone or wireless device was used to possess, produce or disseminate the image; (2) the accused person is not more than four years older or younger than the person who was depicted in the image or who received the image; (3) the person sending and the person receiving the image were involved in a “dating relationship;” (4) the accused person is younger than twenty-two and (5) the person receiving the image or who is depicted in the image consented to or acquiesced.

Accordingly, in the scenario with the fifteen year old sexters, the teenage boy who took the photo of himself and then sent it to his girlfriend might be able to successfully assert a statutory defense. However, the fifteen year old girl who sent the image weeks later to her friends would not have available such a defense. She could be prosecuted for multiple counts of Child Exploitation, which are punishable up to eight years in prison in the adult system. Additionally, each subsequent student who received the naked image of the fifteen year old boy could be prosecuted for possessing child pornography. Even the mother who discovered the photo on her daughter’s cell phone violated the child pornography statute when she knowingly took possession of the cell phone that stored the photo of the naked fifteen year old boy.

Make sure you understand the dangers and risks associated with cell phones, the internet and social media. A photograph originally intended for just one other person might end up in thousands of locations all over the world. Parents, make sure you educate your kids about those risks. We know kids don’t always make the right decisions. One bad decision with a cell phone can last a lifetime.


Jeff Terrill is a partner/shareholder with the law firm of Arnold Terrill Anzini, P.C. Mr. Terrill represents clients accused of crimes throughout northeast Indiana. You can contact Mr. Terrill with any questions or comments at his office at 260.420.7777 or via email at jterrill@fortwaynedefense.com. Learn more about his firm at www.fortwaynedefense.com.

This article expressed opinions and observations of the author, is not intended as legal advice and does not create an attorney-client relationship between the author and the reader. Please consult a qualified attorney with any legal questions or issues you might have. Thank you.

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