Teen Sexting and Federal Law: When a Minor Becomes the Defendant.

Do federal child-exploitation laws contain any “teen-sexting” exception?

No. Federal prosecution, under the relevant statutes, can reach consensual sexting between minors, or even consensual sexting between an underage person and an adult, so long as the underlying image is of a child.

Are self-produced nude images considered child pornography under federal law?

Yes. As a matter of law, an image is considered “child pornography” under the federal child exploitation statutes so long as it contains a visual depiction of sexually explicit conduct that falls within 18 U.S.C. § 2256(8), even if that image was created by that person. Sending a self-produced image may support a production charge only if the sender’s conduct satisfies 18 U.S.C. § 2251(a)’s requirement that the sender employ, use, persuade, induce, entice, or coerce a minor for the purpose of producing the depiction; sending may also support a distribution charge depending on the facts.

How old must a minor be to face federal child-exploitation charges?

While 18 U.S.C. § 5032 establishes jurisdiction for “criminal offenses” against minors age 16 and older, federal law (including the relevant statutes in Title 18) contains no minimum defendant age for child-exploitation charges. This means that a 16-year-old, or a younger minor, if the appropriate federal district court finds it has jurisdiction under 18 U.S.C. § 5032, could theoretically face charges under 18 U.S.C. §§ 2251, 2252, and 2252A.

Which Federal Charges Apply to Teen Sexting?

While “teen sexting” itself is not an offense under federal law, prosecutors can use a variety of statutes to prosecute the behavior. Each of the relevant statutes covers a different aspect of teen sexting, and they all have different elements (meaning that each offense requires proving different acts or facts in order to be found guilty). As a result, teens who are facing child pornography charges in federal district court will need to closely examine the specific charges against them in order to determine how to effectively defend themselves.

Federal authorities, including the U.S. Attorney’s Office, the Federal Bureau of Investigation (FBI), the U.S. Marshals Service, and the U.S. Probation Office, are all committed to aggressive prosecution and sentencing for offenses involving child pornography and sexual exploitation of minors. To build an effective defense against teen sexting allegations, it will be critical for teen defendants to work closely with their defense counsel, learn as much about the government’s case as possible, and aggressively pursue all options in federal court (including pre-trial intervention and diversion programs).

How Can I Fight Teen Sexting Charges?

If you or your teen is facing teen sexting charges in federal district court, one of the most important things you can do is to aggressively pursue all available defenses and options. While it will be important to communicate with your child’s federal prosecutor to avoid a criminal conviction, your child’s defense counsel should also look for any defense that may be available. The most common defense to teen sexting allegations in federal cases are as follows:

• Text-based sexual messages: If the “sexting” in question consisted of sexually explicit text-based communications (i.e., no images), then it will not be considered a “visual depiction” under federal child-pornography laws.
• Age of the victim: If the victim in question is not actually a minor, then it will not constitute child pornography under 18 U.S.C. §§ 2251, 2252, and 2252A.
• Lack of possession, distribution, or transportation: If the teen in question did not send, receive, store, or transport an image, then there will be no grounds for charges.
• Lack of intent: Intent is an element of the “enticement” offense under 18 U.S.C. § 2422(b), and it is often possible to contest an accused minor’s intent to entice.
• Lack of intent to distribute: Distribution requires that the sender intended to transfer possession of an image, so it is often possible to contest a teen’s intent to distribute an image.
• No “obscene” material under 18 U.S.C. § 1470: Obscenity is also an element of the offense in 18 U.S.C. § 1470; and if the “sext” in question was not “obscene” as defined by the law, the charges will not be legally substantiated.

When Does a Nude Image Count as Child Pornography?

Whether a nude image counts as child pornography under federal law depends on the specific circumstances involved, including what is depicted in the image, how it was created, and what the sender or receiver intended. For example:

• Production of a visual depiction: Under 18 U.S.C. § 2251(a), producing a visual depiction of child pornography requires sexual conduct (including “lascivious exhibition of the genitals or pubic area” under 18 U.S.C. § 2256(2)) to be “undertaken for producing” the visual depiction. While naked photos of children are not automatically considered child pornography, if the naked photos depict the child in a “lascivious” light, then they will count as child pornography.

What are the Requirements for Establishing the Principal Offenses of Child Pornography and Sexual Exploitation Under Federal Law?

In addition to the requirements set forth above, the principal offenses under 18 U.S.C. §§ 2251, 2252, and 2252A also require knowing conduct to be found guilty. Sections 2252 and 2252A each include separate penalties for knowingly accessing child pornography with intent to view it. The government must prove beyond a reasonable doubt the mens rea required by the charged statute, including knowledge of the sexually explicit nature of the material and, where required by the statute and controlling circuit law, knowledge that a depicted person was a minor; knowledge that the conduct was against the law is not required.

With respect to distribution, knowing conduct is also required; however, for child pornography produced with the victim’s consent, distribution can be charged as the “knowing” distribution of child-pornographic materials. This may include consent to transfer the images, or just knowledge of possession of images depicting another underage person.

Is a Mistake of Fact About the Age of the Depicted Person Defensible Under Federal Child Exploitation Law?

While mistaken belief about the age of the depicted person is an available defense under state law, it is generally not a defense to federal charges. Courts interpreting 18 U.S.C. §§ 2251 and 2252 have generally held that the government need not prove the defendant knew the age of the person depicted, so a mistaken belief that the person was at least 18 years of age is generally not a defense.

Can Possession of Fewer than Three Images Be Defended Under Federal Child Pornography Laws?

Federal law also requires that possession be “of child pornographic material,” which a teen may be able to defend against by invoking the affirmative-defense safe harbor in § 2252A(d), if its requirements are met. The relevant “safe harbor” provision, 18 U.S.C. § 2252A(d), requires that, if the teen in question possesses fewer than three images of child pornographic material, he or she does not distribute it, destroys it promptly, or contacts law enforcement after it is received, and takes measures to prevent any person other than law enforcement personnel from accessing it.

How Does a Phone Case Become a Federal Investigation?

How Does a Case Involving a Teen’s Smartphone or Social Media Account Become a Federal Investigation?

Using a smartphone or application to create, transport, or share sexual content can establish federal jurisdiction by establishing an interstate commerce connection. 18 U.S.C. §§ 2252 and 2252A expressly encompass any “qualifying interstate or foreign transmission” by computer.

Under 18 U.S.C. § 2258A, “covered providers” (such as phone companies, internet service providers, and developers of apps and online platforms) are required to report any apparent violation of a “specified child-exploitation law” to the National Center for Missing & Exploited Children (NCMEC). This is a primary way federal investigators get wind of “teen sexting” cases in the United States, and the law makes it clear that providers who knowingly and willfully fail to fulfill this obligation can face fines of up to $850,000 for an initial violation by a provider with at least 100,000,000 monthly active users, or $600,000 for a smaller provider. NCMEC forwards reports received via its CyberTipline to state, local, and foreign law enforcement, and federal law enforcement agencies are among the recipients of the NCMEC’s referrals.

Often, local police departments must ask the FBI, the U.S. Attorney’s Office, or other federal agencies to get involved, and federal investigators and prosecutors then decide whether to pursue federal prosecution of the minor involved.

Do Police Officers and Federal Agents Have to Read Miranda Warnings to Teen Defendants?

Police officers and federal agents will often try to question teen defendants before the teen’s parents or attorneys become aware of the investigation. If the teen is arrested or detained, law enforcement officers must provide a Miranda warning before the custodial interrogation. While school questioning is not generally subject to the same legal standards as police questioning, if police officers assist school officials in an interrogation that is custodial in nature, the same Miranda requirements will apply.

Can Teens Face Federal Prosecution Under 18 U.S.C. § 2251 Without an Interstate Commerce Connection?

Under 18 U.S.C. § 2251, jurisdiction can depend on the interstate or foreign commerce transportation of materials used in the production of a visual depiction of child pornography. This includes transportation of cameras, smartphones, and other production materials, meaning that federal jurisdiction can exist even if the visual depiction itself never crosses state or national lines.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

How Does a Minor Enter Federal Juvenile Court?

When Does a Minor “Fall Under the Criminal Jurisdiction of the United States” (18 U.S.C. § 5031)?

Under 18 U.S.C. § 5031, a minor is deemed to “fall under the criminal jurisdiction of the United States” in relation to criminal conduct committed prior to age 18 if federal criminal proceedings (whether a juvenile delinquency proceeding or an adult criminal prosecution) begin before age 21.

Assuming that a minor is arrested under the age of 18, this means that the minor will need to enter federal juvenile court unless federal authorities successfully certify the minor for prosecution in adult criminal court. As we discuss below, certification under 18 U.S.C. § 5032 is required before a juvenile can be the defendant in an adult federal criminal proceeding.

When Can Federal Prosecution of a Minor Be Certified for Prosecution in Adult Criminal Court (18 U.S.C. § 5032)?

Under 18 U.S.C. § 5032, there are several grounds for certification of a juvenile for criminal prosecution in adult court. These include (but are not limited to):

• Substantial federal interest: Certification may be warranted when the offense charged is a crime of violence that is a felony, or a specified controlled-substance or firearm offense, and there is a “substantial Federal interest in the case or the offense” warranting the exercise of federal jurisdiction.
• State lacks or declines juvenile jurisdiction: Certification may also be warranted if the state of the minor’s arrest either “lacks jurisdiction over the juvenile” or has “declined to invoke juvenile jurisdiction,” and juvenile court proceeding in that state is not deemed appropriate under the circumstances.
• Inadequate state programs: Certification under 18 U.S.C. § 5032 may be warranted if appropriate state programs to meet the child’s needs are not available, and juvenile court proceeding in the state is deemed “unwarranted or otherwise inappropriate.”

While these justifications are not exhaustive, they provide good insights into the types of factors that prosecutors can use in pursuit of certification. The Attorney General makes the certification; the district court decides whether transfer to adult criminal prosecution is warranted after the required hearing.

How Are Federal Juvenile Delinquency Proceedings Initiated?

Under 18 U.S.C. § 5032, federal juvenile delinquency proceedings are initiated through “information” rather than “indictment.” The information is a written accusation prepared by the prosecutor and then filed with the court, and it is the formal charging document in federal juvenile court proceedings.

When and How Can a Minor Be Involuntarily Transferred to Adult Criminal Court (18 U.S.C. § 5032)?

Under 18 U.S.C. § 5032, a juvenile who was at least 15 years old at the time of the alleged offense and is charged with a violent felony or a specified controlled-substance or firearm offense may be involuntarily transferred to adult criminal court, on the government’s motion, if the court finds after a hearing that transfer would be “in the interest of justice” under a set of statutory factors. The judge who presides over the juvenile’s transfer hearing will carefully consider these factors before deciding whether to grant the prosecutor’s request to transfer.

Juveniles who are involuntarily transferred to adult criminal court face the same burdens as any other adult defendant. This includes the threat of adult statutory penalties and criminal conviction (which, unlike a juvenile adjudication, carries lifelong consequences including loss of right to vote, right to possess a firearm, and restrictions on employment opportunities).

What Happens After a Federal Juvenile Case Begins?

Which Detention Facilities Are Used to Hold Juvenile Defendants Pending Trial in Federal Criminal Cases?

Detention facilities used for federal juvenile defendants depend on the individual’s circumstances. In general, juvenile defendants may either be held at their parents’ or guardians’ homes, under supervision of the U.S. Probation Office, or held at a government-run juvenile detention center. While detained at federal juvenile detention centers, juveniles are not permitted to “have regular contact” with either convicted adults or adults who are awaiting trial in federal criminal cases.

How Long Will a Federal Juvenile Trial Take if a Minor Is Detained?

Under 18 U.S.C. § 5036, the trial of a detained juvenile must be held “within 30 days after the date the juvenile was detained.” However, for good cause, the court may extend this deadline.

Who Has Access to a Minor’s Federal Juvenile Court Record?

Under 18 U.S.C. § 5038, disclosure of records relating to federal juvenile court proceedings is restricted. This is one of the major (but significant) advantages of the federal juvenile court system.

What Dispositions and Sanctions Are Authorized in Federal Juvenile Court?

Under 18 U.S.C. § 5037, federal juvenile delinquency proceedings allow for all of the same dispositions and sanctions that are authorized in state juvenile delinquency proceedings, including probation, restitution, and official detention. Notably, federal law doesn’t explicitly authorize any specific juvenile punishment beyond those authorized by each and every state law. While a juvenile delinquency adjudication is NOT an adult criminal conviction, it does carry serious consequences.

How Does Federal Juvenile Diversion Differ from Diversion in State Criminal Court?

While federal juvenile court diversion programs are discretionary, diversion programs under state juvenile delinquency laws generally are entitlement programs to which juveniles have rights. The Federal Juvenile Delinquency Act does not establish a juvenile’s entitlement to a diversion program, and this differs from the state-level approach. This means that, in order to seek diversion in a federal juvenile delinquency case, you will need to work with your child’s defense attorney to convince the prosecutors that diversion is in everyone’s best interests.

Can a Juvenile Adjudication Ever Be Sealed?

While 18 U.S.C. § 5038 provides for confidentiality of a minor’s federal juvenile record, this provision also does not create a right to have a federal juvenile adjudication sealed. This is important because, unlike state juvenile court, a sealed record does not erase the minor’s past, which could result in future difficulties when applying to college or employment.

What are the Limits on Official Detention of a Juvenile?

Under 18 U.S.C. § 5037, the length of the detention of a minor under age 18 will depend on whether the minor was sentenced to probation or official detention. If sentenced to probation, the minor will remain on probation until age 21. However, official detention is limited, with minors who are under age 18 not being eligible to remain in detention after they turn 21, and their sentence must not exceed the maximum term of incarceration that they could have received had they been charged as an adult.

What Penalties and Registration Risks Can Follow?

What is the Maximum Statutory Penalty for a First-Offense Conviction Under 18 U.S.C. § 2251(a) ?

Under 18 U.S.C. § 2251(a) and § 2251(c), the maximum statutory penalty for a first-offense conviction is a fine of up to $250,000 and a term of 30 years in prison.

The statutory minimum term of federal imprisonment under 18 U.S.C. § 2251(a) is 15 years, which applies regardless of the age of the juvenile and the severity of the crime. In many cases, however, a teen will not face a mandatory minimum of 15 years because he or she will not have the relevant statutory factors (i.e. the juvenile will not have participated in child pornography involving a person under 15 years of age, and a non-violent offense involving a person between 15 and 17 years of age will not, in itself, satisfy the requirement to commit a felony or a continuing criminal enterprise).

What is the Maximum Statutory Penalty for a First-Offense Conviction Under 18 U.S.C. § 2252A(a) ?

Under 18 U.S.C. § 2252A(a), the maximum statutory penalty for a first-offense conviction is a fine of up to $250,000 and a term of 10 years of imprisonment. While this may be the maximum statutory penalty, the federal sentencing judge will calculate a penalty based on a variety of relevant statutory and discretionary factors.

Is There a Mandatory Minimum Penalty for First-Offense Possession Under 18 U.S.C. §§ 2252 and 2252A ?

No. First-offense possession under 18 U.S.C. § 2252 and § 2252A does not carry a mandatory minimum term of imprisonment. While teens convicted of possession may still be sentenced to terms of imprisonment, the sentencing judge will be the sole authority to determine whether a prison term is warranted.

In contrast, the principal offenses under 18 U.S.C. § 2252 and § 2252A each carry a mandatory minimum of 5 years for first-offense receipt. This means that anyone convicted of receipt will serve at least 5 years if convicted.

What is the Federal Supervised Release Term for First-Offense Child Pornography and Other Sexual Exploitation Offenses?

Supervised release is a critical penalty that must be dealt with during sentencing in federal juvenile cases, particularly when the minor was sentenced for offenses involving child pornography. Under 18 U.S.C. § 3583(k), defendants convicted of these offenses generally will face supervised release from 5 years to life upon release from their sentence of incarceration.

Do Juvenile Adjudications of Child Exploitation and Sex Offenses Require Sex Offender Registration?

Under the federal Sex Offender Registration and Notification Act (SORNA), registration is required for either an adult criminal conviction or juvenile adjudication of certain “qualified” sexual offenses. These offenses include most, but not all, crimes listed under 18 U.S.C. § 20911(8). A juvenile adjudication will qualify as a “qualified sexual offense” if the Juvenile was 14 years of age or older at the time of the conduct, and the underlying offense was one that would carry at least one year of incarceration if he or she had been convicted as an adult.

Generally speaking, in a juvenile court proceeding, a juvenile will not be subject to registration under the federal registration rules. The only exception is if the juvenile has committed a crime that is “comparable to, or more severe than, an aggravated sexual abuse” offense under 18 U.S.C. § 2241. This is a case-by-case determination, and registration risk is not guaranteed in most juvenile court proceedings.

Do State Teen-Sexting Exceptions Prevent Federal Charges?

How Does Federal Law Treat Adults Who Commit Child Pornography Offenses?

Under federal law, anyone aged 18 or older is treated as an adult. This means that, if a 18-year-old high school senior is convicted of possessing or distributing sexually explicit images of a 16-year-old classmate, he or she will be prosecuted as an adult defendant subject to adult sentencing guidelines.

Do State Romeo-and-Juliet Provisions Apply in Federal Child Pornography Cases?

While state courts often offer alternatives to criminal prosecution for “teen sexting” and “Romeo-and-Juliet” cases, these are not available for the principal offenses in federal child pornography cases. While consensual exchanges between teens are generally not prosecuted at the federal level, this only means that a federal prosecutor’s office is unlikely to pursue charges; it does not mean that the behavior is legal.

Do Romeo-and-Juliet Provisions Prevent Registration as a Sex Offender?

The provisions of Romeo-and-Juliet laws do not create a statutory defense to federal child pornography charges. While a juvenile sentenced under federal law will only be subject to sex offender registration under a limited set of circumstances, this is a result of SORNA’s specific requirements rather than Romeo-and-Juliet exceptions.

Do Teen Sexting Laws Apply to Federal Child Exploitation Charges?

While the relevant “teen sexting” laws can provide defenses to criminal charges in various states, they do not amend the federal child exploitation statutes. In other words, teen sexting laws are not applicable in cases involving federal charges; and, as a result, no one will be protected by state laws such as Florida Statute § 847.0141 in federal court.

Do Age Differences or a Lack of Coercion Affect Federal Child Exploitation Charges?

While age difference, coercion, and distribution all play a role in a prosecutor’s decision to file charges, they are not defenses to the federal child pornography offense. As we have discussed, these are factors that prosecutors consider when deciding whether to pursue charges, but none of these factors remove a teen’s liability for the offense.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.