Sexting Poses Challenges To North Carolina Laws

Recently, much has been made -- both in the news and the legal community -- about sexting, or sending nude or revealing photos of yourself or someone else via text message. While the practice isn't particularly new, as more and more phones come equipped with cameras and the ability to send and receive multimedia text messages, the practice certainly seems to be growing.

Unfortunately, just as text messaging is predominately the domain of teens and tweens, so to is sexting. According to a recent online survey commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy, 22 percent of teenage girls and 18 percent of boys admit to sending or posting nude or semi-nude pictures or video of themselves. What most of these teens fail to realize, however, is that by sending these lewd images, they are likely violating a number of laws.

Legal Ramifications of Sexting

Depending on the nature of the material disseminated through texting, a number of federal and state laws may be implicated. For example, transmitting or possessing a nude or sexually explicit image of a minor may constitute child pornography. Because the federal government has jurisdiction over crimes that affect interstate commerce -- and electronic transmissions, such as text messages, are deemed to touch upon interstate commerce -- sexting may be considered a federal offense.

Federal statute 18 USC § 2256 defines child pornography as "any visual depiction" of a minor "engaging in sexually explicit conduct." Those caught possessing or receiving child pornography may be sentenced to up to five years in prison, while those convicted of distributing child pornography -- of sending sexually explicit text messages, for example -- face up to 15 years in federal prison.

While child pornography charges are perhaps the most publicized consequence of sexting, the implications certainly don't end there. In North Carolina, GS 14-190.1 makes it illegal to intentionally disseminate obscenity, which is defined as any material depicting sexual conduct in a patently offensive way. In some circumstances, sexting could also constitute first degree sexual exploitation of a minor under GS 14-190.16. This is a Class D felony, punishable by up to 12 years in prison.

Working as Intended?

Perhaps lost in the outcry over sexting is the fact that by sending these illicit images, North Carolina teens may be found in violation of the very laws that were written to protect them. Since North Carolina's sentencing statute generally treats 16-year-olds as adults, the child pornography laws that were designed to protect children from predators could be invoked to sentence those same children to more than a decade in prison.

In fact, the potentially lengthy prison sentences may not even be the end for teenagers convicted of sexting-related crimes in North Carolina. Under the state's Sex Offender and Public Protection Registration Program, anyone convicted of sexual exploitation of a minor is obligated to register as a sex offender. Depending on the nature of the crime, someone found guilty of a sexting-related crime could be required to maintain this registration for ten years -- or for the rest of his or her life. Job opportunities, college applications, career choices -- all could be endangered by one irresponsible, teenage act.

The problem exposed by sexting isn't new: Laws designed to protect the vulnerable or strengthen our society are sometimes outpaced by rapidly developing technology. In 1998, for example, Congress passed the Digital Millennium Copyright Act because the existing antitheft and antipiracy measures could not easily be adapted to the Internet age. As the means through which people communicate with one another and interact with the world evolve, so too must the laws that govern those interactions.

To date, no North Carolina court has yet heard a sexting case, and the legislature has not yet addressed the issue. Very soon, however, legislators and prosecutors must face the question: Are the laws in North Carolina tailored to cope with the world in which we live?