Posted On: February 19, 2009

Underage "Sexting" Now Punishable as a Sex Crime in a Growing Number of Jurisdictions

As cellular telephone technology advances at an extremely rapid pace, more and more teenagers are possessing phones with the capabilities to snap still photos or record short videos. Coupled with the fact that as a society, children are becoming acquainted with sex at younger ages, this technology has led to the practice of sexting; sending nude photos or other sexually explicit photos and/or videos to a recipient via cell phone. The practice of sexting has led to numerous ethical and moral arguments, but the practice amongst teens has caught the attention of law enforcement. In many jurisdictions, these sexually explicit images and videos, sent amongst teenagers, are violations of child pornography laws.

An online survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy showed that one-in-five teenage participants have sent and/or received sexually explicit material via cell phone. Nearly two-thirds of those who admitted to sexting only did so within a boyfriend/girlfriend relationship; however teens in the other one-third admitted to sexting for the purpose of “hooking-up”. It is this culture of a casual sexual relationship which causes worry amongst advocacy groups who blame society’s attitude for the first rise in teenage pregnancy rates in the past fifteen years.

A Delaware middle-school recently dealt with an incident where cell phones were confiscated during class because they were forbidden in the classroom, only to find sexually explicit material upon inspection of the phone’s content. The school determined the images were not sent at or during school and decided to notify the students’ parents to deal with the problem. Other teens have not been as lucky. Another student in Delaware faces obscenity charges for sending nude photos of himself to classmates. In Pennsylvania, seven students were charged with sending or receiving child pornography when their phones were discovered to contain explicit images sent between the students. Convictions for these offenses not only will carry potential confinement, fines, and psychological evaluations, but may also require those convicted to be registered as sex offenders.

Many oppose prosecution in these cases for the simple reason that the participants do not have a criminal intent, but rather are merely conforming to society as they see it. There are no penalties for the same consensual actions amongst those of age. Many agree that the responsibility stems with the parents to talk to their children. Children should understand that once an image is sent, they no longer have any control over it; and with today’s technology, such material can easily end-up on the internet. Teens should understand that cellular phone technology does not come with a guarantee of privacy.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

Posted On: February 5, 2009

Supreme Court of the United States Elects Not to Hear Arguments on the Constitutionality of the Child Online Protection Act

The Child Online Protection Act (“COPA”) was passed in 1998 in an attempt to regulate inappropriate web-based content which was too easily accessible by children. COPA was never allowed to take effect, however, as an injunction on the Act was immediately issued after its passage. The constitutionality of the Act was challenged in ACLU v. MuKasey, in which a United States District Court held COPA to be unconstitutional as a violation of the First Amendment. The ruling was appealed but upheld last summer by the Third Circuit Court of Appeals in Philadelphia.

As expected, the Circuit Court’s ruling was appealed and the Supreme Court of the United States was asked to grant certiorari; the Supreme Court was asked to review the case and decide whether to affirm the lower court’s decision or reverse the decision, finding the Act constitutional. COPA was passed in 1998; two years after the Supreme Court had voided a similar law known as the Communications Decency Act. Not surprisingly, the Supreme Court determined that the lower courts’ rulings on COPA were in line with both their previous decision and the framework for determining constitutionality. Therefore, the Supreme Court did not grant certiorari, effectively affirming the Circuit Court’s ruling, and voiding COPA.

The Supreme Court was under heavy pressure from the Bush administration to review the case, as the administration felt voiding the law would leave millions of children unprotected from pornography and other inappropriate material on the website. The Act would have required United States based websites to require credit card validation or some other means of age verification to allow access to the site. The American Civil Liberties Union, however, countered with the argument that COPA would not protect children from content via websites which do not operate in the United States. They argued that this infringed on American’s right to freedom of speech and that a better, more effective safety measure would be for parents to install filters on their home computers. The issue of COPA’s First Amendment implications was decided in 2004 by the Supreme Court in a split-decision, which blocked the law from taking effect on grounds that it did unconstitutionally affect freedom of speech; however, the case was sent back to the lower courts to determine the feasibility and effectiveness of internet filters. Based on the findings by the lower courts, most recently the Third Circuit, the Supreme Court recently held two closed-door meetings in which they elected not to review the Circuit Court’s holding.

The Supreme Court’s decision not to review the case effectively voided COPA as it was found to be unconstitutional as a violation of the First Amendment. The holding places the responsibility on the parents to protect their children from inappropriate web-based content, via internet filters or other parental means.

Cases involving child pornography and other internet crimes are very serious and often complicated. An experienced criminal defense attorney can assist you in defending against these prosecutions. Marc Neff has successfully handled many of these cases in both state and federal courts. Additionally, he conducts seminars for other attorneys on the most recent changes in the laws regarding child pornography and internet crime. For a confidential consultation, Mr. Neff can be contacted at (215) 563-9800 or via the internet at marc@nefflawoffices.com