Sexting vs. Child Pornagraphy – What’s the Difference?

North Carolina has made national news in the past few months over a case of two teenagers sexting nude photos to each other in area near Raleigh. The teenagers were boyfriend and girlfriend and they knowingly and consensually took these photos of themselves and sent them to each other. The result? Each was charged with five felony counts of sexual exploitation of a minor – one count for each picture taken of themselves. In this case, the teens were considered both the victim and the perpetrator and they were charges as adults, as North Carolina is one of only two states in the country that treats defendants aged 16 and above as adults in the criminal court system. The charges, had the teens been found guilty, would have resulted in them being placed on the sex offender registry.

This case has caused outrage and fear among patents, as children don’t understand the consequences of sending inappropriate images to each other, specifically when it’s consensual. So does the punishment in these cases fit the crime? The very simple answer is no.

Many of North Carolina’s laws are antiquated, and some of the sex offender laws are no different. They have not been reconsidered for today’s social media culture. And the fact that children under the age of 18 are treated as adults in the criminal court system? Well, there’s an entire tome to be written about that. It seems patently unfair for a child not to be able to vote or make decisions without parental consent, yet to be able to be charged criminally as an adult at the age of 16 or 17.

While children certainly need to be taught about the dangers of leaving behind online footprints, the notion that two consenting teenagers sending pictures to each other would result in criminal charges of any sort is asinine. First, it wasn’t just two teenagers taking pictures of each other and sending them to each other, it was two teenagers, in a relationship, taking pictures of themselves, and sending those pictures to the other. Had they been 18 or older doing this, there would be no crime in question, so why is this a crime when they are 16?

Now, if some factors were different, potentially there would be cause for concern. For example, if:

  • one teenager was taking pictures of the other without consent
  • the pictures were being sent to other people
  • the pictures were being published
  • one of the people taking or receiving pictures is aged 18 or above

then, I could see the potential of a crime having been committed. (For the record, I think the last bullet has to be evaluated on a case-by-case basis. If it’s an 18 year old and the people in question are in a relationship, that would be vastly different than one of the parties being 40 years old.) But even in one of those scenarios, I would hope that law enforcement would carefully evaluate the situation to determine if there was clear intent to break a sex crimes law. A sex crime allegation is incredibly serious, especially when the crime requires placement on a sex offender registry. In the particular case being referenced above, the cases were resolved by the teens entering into a first offender’s program that will allow the charges to be dismissed and expunged, but in my mind, no crime was committed and they never should have been charged in the first place.

But let’s think about the consequences if this were not the outcome. Let’s say that these teens were convicted of what they were charged with. Here would be the impacts:

  • They would be convicted felons for the rest of their lives
  • They would be unlikely to be able to get into a good college, if any at all
  • They wouldn’t be eligible for financial aid for college
  • They potentially wouldn’t be able to be within a certain distance of children, including near schools, playgrounds, or churches
  • They wouldn’t be able to rent an apartment in many cases
  • They wouldn’t be able to get good jobs
  • They would be branded for life as a sex offender

Any time some hears the term “sex offender” we immediately think of a rapist or child molester. If the teens were convicted of this, people would automatically assume that this were there crime – not that they sent nude selfies to each other while in a relationship.

I’m not trying to downplay the fact that these kids sent inappropriate pictures to each other as no big deal. But I would suspect that in this day and age, the majority of American teenagers have done something to this effect. Should they be labeled lifelong felons? Of course, no.

This case highlights the inflexibility in law enforcement in making the decision to charge these teenagers at all and the voracity of the District Attorney’s office to decide to proceed with the charges. Yes, they were offered a first offender’s program with the opportunity for dismissal and expungement, but I think the charges should have been dropped all together, perhaps with an admonishment.

Parents, my views don’t change how the laws are currently written, how law enforcement investigates and criminally charges, and how the District Attorney prosecutes. So let your kids know not just that they shouldn’t be sexting because perhaps you think it’s inappropriate or all of the consequences of those pictures leaving an online footprint, but because there are life long potentially criminal court impacts.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.