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Child Pornography and Selfies: What You Need to Know

Like it or not, the word "selfie" has become part of our lexicon. In 2013 it was named the "Oxford Dictionaries Word of the Year." For the uninitiated, a selfie is a self-portrait photo typically taken with a digital/smartphone camera. The explosion of social media and camera phones have created endless opportunities for anyone to share their self-portraits with the world.

Some teens, already prone to oversharing, take multiple selfies daily. With so many photos flying around, there's also a potential for criminal liability under child pornography laws when selfies involve underage nudity or sexual situations.

Read on to learn more about child pornography and selfies and where laws are drawing the line between harmless fun among children and criminal conduct.

Definitions of Child Pornography

Since technology moves much faster than the law, crimes committed via social media are often prosecuted by applying existing statutes. Under federal law, child pornography is defined as any visual depiction of sexually explicit conduct involving a minor, which is the standard that would apply to selfies.

The U.S. Department of Justice prosecutes child pornography offenses occurring across state or international borders and almost anytime it involves the Internet. Federal charges need not be exclusive as a person could also face criminal liability under state child pornography laws, which are largely similar to, and sometimes more comprehensive than, federal laws. Many states further define elements of the crime, such as what constitutes sexually explicit conduct or who is considered a minor. For example:

  • Massachusetts extends its child pornography laws to include participating, with lascivious intent, in the depiction of a nude minor in any visual material.
  • In South Carolina, the judge or jury may infer that the participants in alleged child pornography are minors based on the material's title or text.
  • Utah's definition of "sexually explicit content" includes actual or simulated "explicit representation of defecation or urination functions."

Child Pornography and Selfies: When Children Can Commit the Crime

If an adult takes a sexually explicit picture of a minor and shares it via social media or text message, that adult will likely have run afoul of child pornography laws. But what about a minor who takes selfies and sends them discreetly to another teen? What if the receiver then forwards the photos to others? Have they violated any laws? In many states, the answer is yes.

Though their laws were created to protect minors from exploitation caused by others, states are prosecuting minors under child pornography statutes for sending nude or otherwise lurid self-portraits, even when the minors sent the selfies without coercion. The common quirk in the laws is that there is no exception for taking or distributing sexually explicit pictures of oneself. Thus, a high school student sending a racy selfie to a boyfriend or girlfriend could subject both themselves and the receiver to prosecution for child pornography. If the picture makes its way around other social circles through online or direct sharing, anyone who received or distributed the photo could also find themselves open to charges.

Direction of Future Laws

The overall trend on both the federal and state levels is toward broader definitions of child pornography with increased prosecutions and harsher penalties for those connected to it. One of the gray areas in the age of social media is what constitutes "possession" of child pornography. Most social media sites can now store large caches of images indefinitely on the Internet, lessening the need for viewers to download files to their computers. Other services, such as Snapchat, can be used to distribute selfies that auto-delete themselves after a few seconds (though the receiver may take a screen shot before the image disappears).

Since merely viewing child pornography is illegal in many states, browsing a website or knowingly receiving illegal images would be criminal activity in those jurisdictions. Other states' child pornography laws, however, have "possession" requirements that are somewhat archaic in the digital age. The shortcomings of these statutes were exemplified by a pair of high court decisions from Oregon and New York:

  • A 2011 decision by the Oregon Supreme Court reversed the conviction of a man charged under the state's Encouraging Child Sexual Abuse statute since the child pornography in question was only accessed on the Internet and he never 'possessed' or 'controlled' the images, as required by the law.
  • Similarly, in 2012, the New York Court of Appeals held that viewing child pornography online does constitute the "knowing procurement or possession of those files" and reversed some charges against the defendant.

States have since taken steps to close such loopholes and expand the reach of their child pornography laws to include developing and future technologies, but this is an area of law that is rapidly evolving to meet the times. For teens sending or exchanging risqué pictures, their concern can no longer be limited to whether it may bring embarrassment or even parental and academic discipline. Instead, they need to also consider whether that sexually explicit selfie can get them prosecuted under child pornography laws.

More Questions About Child Pornography and Selfies? Talk to a Lawyer

Given the uncharted world of social media and the broad reach of many child pornography laws, selfies could unwittingly lead to criminal charges for seemingly innocent conduct. The laws don't always apply the same way in different states so it's important to contact a criminal defense lawyer that's experienced in the laws of your state. Do so early as a lawyer may be able to help you head off a criminal prosecution. You can get started today by calling an experienced criminal defense attorney.

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