Sex and children…always a testy topic. However, there was a rather probing question asked on a recent lawyer board, and while answering it, I thought it would be good to add this to the blog. It is an interesting question, and certainly a timely one. There have been several reports of students “sexting” to each other, and in several instances, this has led to felony and/or misdemeanor charges for the transmitting of underage materials across wires (i.e. phone to phone, or on the computer). With the prevalence of instagram, snapchat, and other social media “insta-gratification” apps, the ability to snap a quickie and send it often overcomes common-sense; and frankly, some of the arcane laws still on the books, penalize the very children they are meant to protect (there has to be irony in that somewhere). We are looking to defend a sexting case in DC or VA, and would be interested in speaking to anyone going through this now.

Question: If I am 17 and I sent nude pics to a girl who is 21, what happens? She sent nude pics of herself first and then asked me for pics in return. I sent them and now she threatens to report it. My face was in none of the pics so it can’t really be proven they were of me.

On to your question. She can absolutely get a protective order against you for sending underage photographs to her via phone. And stop this nonsense about “they can’t see my face.” Unless you used someone else’s phone, it came from your phone, and arguably…it’s you! If you DID use someone else’s face, then you’re in a heap more trouble, because you are transmitting under-age material on another person’s phone without permission. And if they did give you permission, then you’re both in trouble…you get the idea.

Essentially, transmitting underage pictures is a no-no. She could seek a protective order against you, or worse accuse you of child pornography (VA 18.2-374.1:1). Her sending you pictures is arguably contributing to the delinquency of a minor (see generally VA §18.2-371 — note, you didn’t have sex with her, but she did contribute to corrupting you, which arguably falls under 18.2-371). Additionally, if she sent pictures and sought to entice you into engaging in sexual activity (depends on the pictures, and the communication), she could also be guilty of §18.2-374.3(B) (enticing a minor). The government might throw in a VA §18.2-370 (encouraging a minor to participate in filming or exposing himself; however, this is more of a stretch, as it usually needs to involve some kind of gain on the part of the bad actor). As a rule though, prosecution of females for sending pictures to males, when the female is over 18, is not as common.

In DC, the relative code is DC Code §22–3010 (enticing a minor) and 18 U.S. Code §2252 (child pornography). There are others, of course, but these are the two most relevant to this topic.

Feel free to reach out if you have additional questions. If you think you might be charged with anything related to child pornography, sexting, enticing a minor, or similar crimes, you absolutely must reach out to us immediately. No matter how understanding the police or detectives may be, speaking to them without an attorney is death to your case.

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