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Juvenile Sexting / Child Pornography Crimes in Florida

Today’s youth are rarely found without their smartphones. While this has enabled them to be connected with family and friends like never before, there has also been an increase in instances of children and teenagers sending nude or inappropriate pictures or videos of themselves or their peers to others.

This poses a problem: Because these photographs and videos depict children under the age of 18 years in a state of undress or engaged in sexually explicit activities, the photographs constitute “child pornography” and those youth who send them to others are “distributing” these pornographic images and videos. Under archaic child pornography laws, a child could be guilty of committing such an offense if he or she were to send a nude photograph of him- or herself to a boyfriend or girlfriend.

In an effort to better address these and other complicated situations, the Florida Legislature recently enacted Florida Statute § 847.0137 and others. This statute creates several crimes of varying severity (and varying punishment) related to possession and distribution of lewd or sexually explicit media depicting children.

Florida Statute § 847.0137: Minor Transmitting Child Pornography

One of the most serious crimes relating to images or recordings involving children in sexually explicit situations is found at Florida Statute § 847.0137. This statute criminalizes those who “transmit child pornography.” A child under the age of 18 years commits this offense when he or she:

Sends or causes to be delivered
From one or more persons or places
To one or more persons or places
Over or through any medium (including the Internet)
By use of any electronic equipment or device
Any image, information or data constituting “child pornography”

“Child pornography” is defined in Florida Statute § 847.001 as any image that shows a minor child engaged in sexual conduct.

Under this statute, a juvenile is liable whether the juvenile is located outside the State of Florida but transmits child pornography to one or more persons or places inside of Florida or vice versa.

Violation of Florida Statute § 847.0137 is a third-degree felony. For adults, third-degree felonies could result in up to five years’ of imprisonment and a fine of no more than $5,000.

Florida Statute § 846.0141: Juvenile Sexting

Florida’s sexting law, found at Florida Statute § 847.0141, was initially created in 2011. Due to weak enforcement provisions of that initial law, the Florida Legislature had to modify the statute so as to provide some consequence for a first violation.

“Sexting” occurs under § 847.0141 when:

A minor under the age of 18 years
Utilizes a computer or any other device that can electronically transmit or distribute data
To transmit or distribute a photograph or video of any person that depicts nudity and is harmful to minors

Sexting can also occur if the minor child possessed a photograph or video of any person that depicts nudity and is harmful to minors.

Florida Statute § 847.001(6) defines the term “harmful to minors” as “any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual excitement” when:

It appeals predominately to a “prurient, shameful, or morbid interest”
It is “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors;” and
It is, on the whole, “without serious literary, artistic, political, or scientific value for minors.”

Florida Statute § 847.001(9) describes “depicts nudity” as a “showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering.” It also encompasses the showing of a female breast without a fully opaque covering of any portion of the breast below the top of the nipple as well as the showing of covered male genitals in “a discernibly turgid state.”

Penalties for Florida Juveniles Who Commit Sexting

A juvenile who is adjudicated as having violated Florida Statute § 847.0141 will face consequences of some sort, even on a first offense. If the juvenile has committed sexting more than once, the penalties will increase for each subsequent offense:

On a first offense, the matter is handled as a noncriminal violation. The juvenile may choose to contest the citation he or she receives or pay a $60 penalty, complete eight hours of community service, or attend a cyber-safety program (if available) within 30 days of receipt of the citation
On a second offense, the matter is a first-degree misdemeanor. First-degree misdemeanors are generally punishable by up to one year in jail and up to $1,000 in fines
On a third offense, the matter is a third-degree felony. Third-degree felonies can be punished with up to five years in prison and fines of up to $5,000

There may be additional penalties if the juvenile is found to have violated other, related statutes such as bullying at cyberbullying or stalking.

Defenses Available to Transmission of Child Pornography and Sexting in Florida

A child may have a defense to a transmission of child pornography or a sexting charge if the child did not solicit or encourage another to send him or her the pornographic or nude images or recordings and the only “transmission” of such images or videos was to a school official, law enforcement, or other suitable adult in order to report the matter.

Other defenses may attack the manner in which the juvenile and his or her parents are made aware of the charge, especially if the juvenile is merely cited for a first-time sexting violation. If the citation does not include information for the juvenile and his or her family as to how the citation may be contested, the citation may be defective.

A Florida Sexting and Child Pornography Attorney Can Make a Difference

Sexting and transmission of child pornography can be serious charges, even for a juvenile. Musca Law is capable of providing professional, informed, and resourceful representation to minors facing these and other related charges. Our firm’s lengthy experience and awards have been hard-earned in and out of the courtroom.