Like it or not, the word "selfie" has become part of our lexicon. In 2013, dictionary publisher Oxford University Press named it the "Word of the Year." For the uninitiated, a selfie is a self-portrait photo often taken with a smartphone or other digital camera. The explosion of social media and camera phones has permitted anyone to share their self-portraits with the world.
Some teens, already prone to oversharing, take many selfies daily. When teens find themselves in intimate relationships, they may also engage in sexting. Sexting involves sending explicit images and/or messages via text message. This could be a nude or partially nude selfie that someone sends to their partner.
With so many photos flying around, young people may not consider the potential for criminal liability. Yet selfies involving underage nudity or sexual situations may violate child pornography laws.
Read on to learn more about child pornography and selfies. Can states draw a line between harmless attention-seeking behavior and criminal conduct?
Definitions of Child Pornography
Technology moves much faster than the law. That means crimes committed via social media and internet-capable devices may sometimes evade prosecution.
Under federal law, child pornography involves any visual depiction of sexually explicit conduct involving a minor. This is also the standard that would apply to selfies. State law definitions are similar. A minor is a person who has not reached the age of majority. In most states, this is a person under 18 years old.
The U.S. Department of Justice (DOJ) prosecutes child pornography offenses occurring across state lines and almost anytime it involves the internet. The DOJ also brings federal charges in cases of importation of child porn from other countries into the United States. You can review federal child pornography laws at 18 U.S.C. Sections 2251-2260. These laws include the federal crime of sexual exploitation of children.
Law enforcement can bring criminal charges in both federal courts and state courts. Many state laws against child pornography mirror federal laws. Sometimes, they may be more comprehensive. States define the elements of their crimes. They set forth what constitutes sexual conduct or sexual activity. They determine 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 several factors. This includes their view of the material or a medical expert's opinion after viewing the images of the child in the material.
Some states are also changing the terminology used to describe these crimes. Many argue that "child pornography" implies consent similar to the way performers choose to participate in adult pornography. However, it is generally more accurate to call these materials "child sexual abuse imagery."
For example, legislators in Arkansas passed a law in 2023 replacing the term "child pornography" with "child sexual abuse material" in the state code.
Child Pornography and Selfies: When Children Can Commit the Crime
If an adult takes or shares images of minors that are sexually explicit, they will likely have run afoul of child pornography laws. But what about a minor who takes selfies and sends them to another teen? Is the selfie considered child sexual abuse material? What if the receiver then forwards the photos to others? What if one of their friends posts the image on social media? Have they violated federal child pornography laws? Have they committed state child pornography crimes?
In many circumstances, the answer is yes.
Though these laws were created to protect minors from sexual abuse and exploitation caused by others, states are prosecuting minors under child pornography statutes. This can be 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 who sends a racy selfie to a boyfriend or girlfriend could face charges. The recipient could also face prosecution for viewing or possessing child pornography.
If the picture makes its way around to others, anyone who received or distributed the photo could also find themselves open to child pornography charges.
Penalties for Child Pornography
Given the relation to the sexual exploitation of minors, child pornography cases carry penalties associated with serious crimes. Simple possession of child sexual abuse materials is a felony offense at the federal and state levels. Even a first-time offender can expect a prison sentence.
If the offender's conduct includes the creation or distribution of these materials, the degree of felony offense will rise along with the potential prison sentence. A prior conviction in the area of child pornography or child exploitation will likely increase prison time.
State and federal child pornography crimes also require those convicted to register as sex offenders. Depending on the circumstances and the degree of the offense, sex offender registration may be for several years or for life.
Challenges to Child Pornography Laws
In a series of key cases, federal courts have addressed challenges to material labeled as child pornography. They have distinguished it from protected activity under the First Amendment's free speech clause.
In New York v. Ferber (1982), the U.S. Supreme Court stated that the First Amendment provides no protection for child pornography. The court concluded that the state had a compelling interest in protecting the well-being of children. It also found that the distribution of photos and films depicting children engaged in sexual activity is related to child abuse.
The court zeroed in on the financial incentive in making pornography. It noted that child labor laws alone have limited effect in preventing these crimes. Finally, it said there is little, if any, societal value in such productions. They do not represent a significant contribution to the arts, science, or educational fields, the justices ruled.
The trend on both the federal and state levels is toward broader definitions of child pornography. This results in 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. This lessens 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 screenshot before the image disappears).
Since viewing child pornography is illegal in many states, browsing a website or knowingly receiving illegal images of children would be criminal activity in those jurisdictions. In other states, child pornography laws have "possession" requirements that are somewhat archaic in the digital age. For example, in 2012, the New York Court of Appeals held that viewing child pornography online did not constitute the "knowing procurement or possession" of internet cache files found on a computer. It reversed some charges against a defendant.
States have since taken steps to close such loopholes. Most seek to expand the reach of their child pornography laws to include developing and future technologies. Still, this is an area of law that keeps evolving to meet the times.
Teens sending or exchanging risqué pictures should be wary. What's at stake is more than embarrassment or even parental and academic discipline. They need to consider whether that sexually explicit selfie can lead to prosecution under child pornography laws.
What Can You Do if You Think Someone Is Involved with Child Pornography?
Some people question the time and money spent on investigating any crimes related to pornography. They may describe it as a "victimless" crime. Citizens may disagree on whether adult pornography relates to protected "speech" or "expression" under the U.S. Constitution.
However, there appears to be little debate about the status of child sexual abuse materials. State and federal laws reflect society's condemnation of it. Those who work with survivors of child sex trafficking point out that by its nature, child pornography involves child sex crimes.
If you have information about the sexual exploitation of a child or suspect someone is using or sharing child pornography, you can take action. To report any kind of child abuse, contact the Childhelp National Child Abuse Hotline at 1-800-4-A-CHILD (1-800-422-4453). To report suspected activity with child pornography, go to cybertipline.org. You can also call the National Center for Missing and Exploited Children at 1-800-THE-LOST (1-800-843-5678).
More Questions About Child Pornography and Selfies?
Talk to a Lawyer
Given the world of social media and the broad reach of many child pornography laws, explicit selfies can lead to criminal charges. The laws don't always apply the same way in different states. So it's important to seek legal advice on these matters. A criminal defense lawyer can distinguish legal behavior from that constituting criminal offenses. If you have questions, consider calling an experienced criminal defense attorney for answers.