National and local news outlets reported last week that police charged a 16-year-old Virginia girl with child pornography crimes after police say she posted photos of herself naked on Twitter.
James City County police received an anonymous tip in late January. When police officers approached the juvenile she admitted posting racy photographs of herself on her Twitter account. The young lady also admitted to police that she was sending copies of these selfies directly to her male friends. Because she was disseminating provocative pictures of a minor (herself) Law enforcement officials chose to charge her with a violation of Virginia Code § 18.2-374.1:1. Possession, reproduction, distribution, solicitation, and facilitation of child pornography.
While this situation is unique in that the prosecution is going after a person sending images of herself, this is not the first prosecution of this kind. In 2012. a Franklin County, Virginia 15-year-old was charged with 12 counts of child pornography for sexting. In 2013, three Fairfax teenagers were prosecuted for possession and distribution of child pornography after they filmed themselves engaging in sex acts with teenage girls. Each of these boys were found guilty of child pornography charges. Fortunately, their attorneys reached resolutions that allowed the charges to ultimately be removed from their records.
Sadly, the strict reading of child pornography laws allows for conviction in sexting cases. Any person that possesses a sexually explicit image of a child under 18 is culpable of possessing child porn. A selfie or a photo of a consenting friend can be considered such a picture. Possession is a class 6 felony punishable by 1-5 years in jail. If that person sends the image to another person, that is distribution punishable by as much as 20 years.
The speed of the technology and social media in this area is staggering. Twitter and Facebook are old news to tech savvy teens. New apps and programs for smart phones come out daily. The methods and media for sending pictures and messages are fluid.
Software developers have created a number of programs that ostensibly protect the privacy of photographs. "Wink" is an app that allows users to take pictures and chat with some level of anonymity. "Whatsapp messenger" also allows users to trade messages without a username creating some levels of privacy. "Clipchat" allows iPhone users to send pics and short videos to each other that disappear after they are viewed and theoretically cannot be saved by the person viewing the image. Some of these apps can even be hidden from the home page so people other than the smartphone owner will not know it is installed.
The most popular of all these apps is "Snapchat." Snapchat allows the user to send videos or photos to friends. The recipients of these "snaps" can view the picture for 10 seconds. The picture is "hidden" so that the recipient cannot see or share the picture. Snapchat claims that as of 2012 over a billion pictures have been shared using their software.
The problem with these apps is that teens and young adults wrongfully assume that they are secure. Snapchat pictures are not deleted. The information remains on both the sending and receiving device. Police and FBI forensic analysis can easily retrieve the images. Several civilians claim that they can also access Snapchat pictures. Also, as a low tech workaround nothing prevents the recipient from capturing Sanapchat images with another device. Finally Snapchat has acknowledged that it complies with federal law an has turned images over to law enforcement. In November 2013, police charged several Canadian teenage boys with child pornography offenses arising out of the dissemination of Snapchat photos of teenage girls.
Virginia Attorneys recognize that current state child pornography laws are behind the times. Child pornography laws were written before the popularity of smartphones. The laws do not know how to differentiate teenagers making poor decisions from actual predators. The Virginia General Assembly has considered but not passed bills that would make sexting a misdemeanor.
A recent study found that approximately 7% of young people had sent or received sexually explicit photos of each other. Nationally, close to half of the states have passed specific texting laws to try to make sure that these teens aren't labeled felons or sex offenders. Virginia has not kept up with this trend.
The present state of the law in Virginia should be frightening to all teenagers and parents. Even more frightening is the willingness of certain prosecutors to pursue child pornography charges in sexting cases. The lesson here is that nothing you do on your smartphone is completely private. Things done with other peoples smartphones are even less private. Sexting is a bad idea for adults and can be life altering for minors.