How Do Sexting and Child Pornography Crimes Differ in Florida?

November 7, 2019

Teenagers will be teenagers. Teens engage in risky or dangerous behaviors because they are driven by exploding hormones and the mistaken belief that each one is twenty feet tall and bulletproof. Expansion of technology also feeds into the teen’s still-growing mind. Now kids can memorialize their dangerous stunts on their smartphones, link to a social media platform, and send the imagery out into the world for all to potentially view. Children do not realize how potentially damaging this behavior might be, nor do they realize that bad things can, in fact, happen to them.

As teens begin to explore their growing bodies, their need to engage in sexual experiences grows. No person is immune from these compulsions. Thus, teens take pictures of themselves or others while nude or performing a sexual act and share it with their friends or send these private images out to be spiteful or vengeful with their ubiquitous smartphones. There are obvious problems with this behavior.

A teenager has a lot to worry about. Peer pressure can be excruciatingly difficult to handle. Both genders have questions about their self-image, their reputation, and their level of popularity amongst their peers. Any misperception of one’s lowered social status can send a teenager with raging hormones into a deep depression. These feelings might be exacerbated if someone shared an image of a minor in a compromised position depicting them in a sexual act or in a state of nudity. 

As a result of these complicated matters, the state of Florida criminalized sexting. The crime of sexting is a crime specifically applied to minors, that is people who have not yet attained the age of eighteen and is not sexting as understood by its colloquial meaning.

Sexting in Florida

In Florida, sexting is the act of one minor sending another minor an image of another minor who is depicted in the nude or while engaged in a sexual act. Minors, because of their age, cannot consent to send explicit photos to each other, even if the recipient receives permission from the person shown in the image to send it to others. Only adults can send photographs and videos of other adults to other adults, provided that the photo or image was obtained legally, then there is no crime. 

The Florida legislature enacted the prohibition against sexting and created potential penalties to strike a balance between preventing the harm that could befall a minor who is the subject of a pornographic image and the possibility that a punishment of a minor for dissemination of child pornography could be life-altering and disproportionate to the severity of the crime in the particular circumstances of the incident. Under Florida statutes §847.0141, a child must not distribute, receive, or transmit an image or file electronically that shows another minor in a state of nudity or is harmful to a minor. 

A person is depicted in the nude under Florida law when the person’s genitalia, pubic area, buttocks, female breasts below the tops of the female’s nipples. Additionally, something is harmful to minors when the photograph, image, or video shows nudity, sexual arousal, or sexual conduct and is prurient, shameful, or morbidly interesting, is offensive, and has no value to a minor for artistic, literary, scientific, or political reasons.

Penalties for the Crime of Sexting in Florida

The first offense of sexting is a non-criminal violation. A minor charged with sexting must pay a small fine not to exceed $60.00, satisfy a community service requirement, and take a class designed to educate the person on cyber-safety and the dangerous nature of sexting. The minor has the chance to contest the civil infraction before a judge. 

The juvenile faces stiffer penalties for subsequent sexting offenses. A second offense is a first-degree misdemeanor. A third offense of sexting results in a third-degree felony. A juvenile judge has the authority to sentence a juvenile adjudicated delinquent of a felony to a juvenile detention center, probation, and possibly register as a sex offender.

A minor can avoid a charge under this section if the child follows the statutory requirement. To avoid the charge of sexting, the minor must not have solicited the image, passed the image on, and taken some objectively reasonable steps to inform an authority figure like a parent, guardian, teacher, or law enforcement officer about the image.

When Does Sexting Become Transmitting Child Pornography?

Florida statutes §847.0137 punishes a juvenile who possesses or transmits an image the court considers to be child pornography. The charge carries a possible five-year prison term as a third-degree felony if committed by a person over the age of seventeen. A juvenile could be sentenced to a term in the juvenile detention, sex offender probation, and be ordered to attend sex offender counseling and register as a sex offender in his or her county of residence.

A minor is delinquent or guilty of transmitting child porn when the defendant is under eighteen years-of-age, sends an image or data containing child pornography, from another and to another, electronically, whether by the internet or other electronic means such as through a smartphone or tablet.

The phrase child pornography under §847.0137 is defined as an image of a child engaged in sexual conduct or while committing a sexual act. The definition of child pornography and that of material that is harmful to minors are substantially similar to each other. The difference might be one of degree. 

A person eighteen or older could face prosecution under §847.0137 as well. An adult found guilty under this section could be sentenced to no more than five years. However, each image or transmission, could be an independent crime, provided that the transmission occurred at intervals greater than 24 hours apart. 

Collateral Consequences of Sexting and Transmitting Child Pornography

A conviction for any criminal offense in Florida comes with collateral consequences. A juvenile judge in Florida can require a minor convicted of sexting, rather than having been found responsible for a civil infraction, and transmitting child pornography to register as sex offenders in Florida. Also, the judge could place the person on sex offender treatment protocols while the violator is on probation. Failing to satisfy those requirements could allow the judge to send the person to prison as a probation violator or as part of a criminal sanction for failing to register as a person convicted of a sex crime.