This law firm represents teenagers and young men and women accused of Federal crimes for exchanging photos and videos depicting teenagers under the age of 18 while nude or engaged in sexual acts. The exchange of these photos and videos is commonly referred to as “sexting.” Sexting takes place over text messages, in chat apps such as Signal, Kik and WhattsApp, and via online chats and email exchanges.
Federal Sexting Crimes
Sexting or digital chats in which pornographic images are exchanged and one person is age 18 or older, but the other is under 18, may result in Federal criminal charges for child pornography and sexual exploitation of minors. Sexting is the act of sending explicit images to another person using digital devices. The act is illegal and punishable by very high prison sentences when the images are of minors or when a minor is directed to create or send images of themselves to someone age 18 and older.
Unfortunately for high school students who just turned 18, Feds are cracking down on sexting by teenagers. We have observed and represented high school students who were being investigated and charged for possession of child pornography, distribution of child pornography, enticement to create child pornography, and creation of child pornography from acts that these students engage in without realizing the legal consequences. The problem for these 18 years olds is that the subjects in the photos are students themselves, thus making the creation, possession, and sharing of these images illegal.
Online chat rooms, text messages, or smartphone apps for chatting are the common methods used by teenagers to communicate with each other and send pornographic photos back and forth. When one of the teens is under 18, Federal charges may follow.
Nonetheless, the Federal sexting laws do not delineate an age requirement for prosecution. Thus, hypothetically, a 16 year old who asks his girlfriend for a nude photo, can technically be charged under these laws. The discretion to bring charges lies with the federal investigators and federal prosecutors.
Federal Criminal Charge Penalty Table
| Federal Charge | Description | Years in Prison |
|---|---|---|
| 18 USC 2251 | Sexual exploitation of children | 15-30 Years |
| 18 USC 2422 | Coercion and enticement | 10 years – Life |
| 18 USC 2252 | Materials depicting sexual exploitation of minors | 10-40 Years |
| 18 USC 1470 | Transfer of obscene material to minors | 10-40 Years |
| 18 USC 1466A | Obscene representations of children | 10-40 Years |
Explanation of Laws & Penalties
18 U.S.C. § 2251
Sexual exploitation of children.
Section 2251(a) prohibits employing, using, persuading, inducing, enticing, or coercing a minor, or transporting any minor in interstate or foreign commerce, with the intent that the minor engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct;
Section 2251(b) prohibits any parent, legal guardian, or person with custody or control of a minor from knowingly permitting the minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct;
Section 2251(c) prohibits employing, using, persuading, inducing, enticing, or coercing any minor to engage in any sexually explicit conduct outside of the United States for the purpose of producing a visual depiction of such conduct;
Section 2251(d) prohibits knowingly making, printing, or publishing an advertisement seeking or offering to receive, exchange, buy, produce, display, distribute, or reproduce any visual depiction of a minor engaging in sexually explicit conduct, or seeking or offering participation in any act of sexual conduct by or with a minor for the purpose of producing a visual depiction of such conduct.
Section 2251 includes attempt and conspiracy, and has a statutory minimum penalty of 15 years and a maximum of 30 years in prison.
If the defendant has one prior conviction under chapter 110, section 1591, chapter 71, chapter 109A, chapter 117, section 920 of title 10, or any analogous state conviction, there is a statutory minimum penalty of 25 years and a maximum of 50 years in prison.
If the defendant has two or more prior convictions, there is a statutory minimum penalty of 35 years and a maximum penalty of life in prison.
If, in the course of an offense under this section, the conduct results in the death of a person, there is a statutory minimum penalty of 30 years and a maximum penalty of life in prison, and the death penalty applies.
18 U.S.C. § 1466A
Obscene visual representations of the sexual abuse of children.
Section 1466A(a) prohibits knowingly producing, distributing, receiving, or possessing with intent to distribute, a visual depiction of any kind (including a drawing, cartoon, sculpture, or painting) that depicts a minor engaging in sexually explicit conduct and is obscene, or depicts (or appears to depict) a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal). Such visual depiction must also lack serious literary, artistic, political, or scientific value. Section 1466A(a) includes attempt and conspiracy, and provides a cross reference to 18 U.S.C. § 2252A(b)(1) (see below) for penalties.
Section 1466A(b) prohibits knowingly possessing a visual depiction of any kind (including a drawing, cartoon, sculpture, or painting) that depicts a minor engaging in sexually explicit conduct and is obscene, or depicts (or appears to depict) a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal). Such visual depiction must also lack serious literary, artistic, political, or scientific value. Section 1466A(b) includes attempt and conspiracy, and provides a cross reference to 18 U.S.C. § 2252A(b)(2) (see below) for penalties.
Pursuant to § 1466A(c), the minor depicted does not have to actually exist.
18 U.S.C. § 2252
Certain activities relating to material involving sexual exploitation of minors.
Section 2252(a)(1) prohibits knowingly transporting or shipping by any means (including computer) any visual depiction if the producing of the visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct;
Section 2252(a)(2) prohibits knowingly receiving or distributing any visual depiction or knowingly reproducing any visual depiction for distribution if the producing of the visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct;
Section 2252(a)(3) prohibits knowingly selling or possessing with intent to sell any visual depiction if the producing of the visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct;
Section 2252(a)(4) prohibits knowingly possessing one or more books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction if the producing of the visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.
Subsections (a)(1), (a)(2), and (a)(3) include attempt and conspiracy, and have a statutory minimum penalty of five years and a maximum penalty of 20 years in prison. If the defendant has a prior conviction under chapter 110, section 1591, chapter 71, chapter 109A, chapter 117, section 920 of title 10, or an analogous state conviction, there is a statutory minimum penalty of 15 years and a maximum of 40 years in prison.
Subsection (a)(4) has a statutory maximum penalty of ten years in prison. If the defendant has a prior conviction under chapter 110, chapter 71, chapter 109A, chapter 117, section 920 of title 10, or an analogous state conviction, there is a statutory minimum penalty of ten years and a maximum penalty of 20 years in prison.
18 U.S.C. § 2252A
Certain activities relating to material constituting or containing child pornography.
Section 2252A(a)(1) prohibits knowingly mailing or transporting or shipping (including by computer) any child pornography;
Section 2252A(a)(2) prohibits knowingly receiving or distributing any child pornography or any material that contains child pornography;
Section 2252A(a)(3) prohibits knowingly reproducing any child pornography for distribution (including by computer) or advertising, promoting, presenting, distributing, or soliciting (including by computer) any material that contains an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct;
Section 2252A(a)(4) prohibits knowingly selling, or possessing with the intent to sell, any child pornography;
Section 2252A(a)(5) prohibits knowingly possessing any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography;
Section 2252A(a)(6) prohibits knowingly distributing, offering, sending, or providing to a minor any visual depiction (or what appears to be a depiction) of a minor engaging in sexually explicit conduct for purposes of inducing or persuading a minor to participate in illegal activity;
Section 2252A(a)(7) prohibits knowingly producing with intent to distribute, or distributing, (including by computer) child pornography that is an adapted or modified depiction of an identifiable minor.
Subsections (a)(1), (a)(2), (a)(3), (a)(4), and (a)(6) include attempt and conspiracy, and have a statutory minimum penalty of five years and a maximum of 20 years in prison. If the defendant has a prior conviction under chapter 110, section 1591, chapter 71, chapter 109A, chapter 117, section 920 of title 10, or an analogous state conviction, there is a statutory minimum penalty of 15 years and a maximum of 40 years in prison.
Subsection (a)(5) includes attempts and conspiracies and has a statutory maximum penalty of ten years in prison. If the defendant has a prior conviction under chapter 110, chapter 71, chapter 109A, chapter 117, section 920 of title 10, or an analogous state conviction, there is a statutory minimum penalty of ten years and a maximum of 20 years in prison.
Subsection (a)(7) includes attempts and conspiracies and has a statutory maximum penalty of fifteen years in prison.
18 U.S.C. § 2422
Coercion and enticement.
Section 2422(a) prohibits knowingly persuading, inducing, enticing, or coercing any individual to travel to engage in prostitution, or in any illegal sexual activity. Section 2422(a) includes attempt, and has a statutory maximum penalty of 20 years in prison.
Section 2422(b) prohibits using the mail or any facility or means of interstate commerce to knowingly persuade, induce, entice, or
coerce any individual younger than 18 years old, to engage in prostitution or any illegal sexual activity. Section 2422(b) includes
attempt, and has a statutory minimum penalty of ten years and a maximum penalty of life in prison.
Federal Statutes in Full
18 U.S. Code § 2422 – Coercion and enticement
(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
(b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.
18 U.S. Code § 2251 – Sexual exploitation of children
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
(b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
(c)
(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that—
(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail; or
(B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail.
(d)
(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering—
(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct;
shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that—
(A) such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed.
(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life.
18 U.S. Code § 2252 – Certain activities relating to material involving the sexual exploitation of minors
(a) Any person who—
(1) knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(3) either—
(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title, knowingly sells or possesses with intent to sell any visual depiction; or
(B) knowingly sells or possesses with intent to sell any visual depiction that has been mailed, shipped, or transported using any means or facility of interstate or foreign commerce, or has been shipped or transported in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported using any means or facility of interstate or foreign commerce, including by computer, if—
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct; or
(4) either—
(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title, knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction; or
(B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if—
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
(b)
(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.
(2) Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if any visual depiction involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.
(c)Affirmative Defense.—It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant—
(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.
18 U.S. Code § 1470 – Transfer of obscene material to minors
Whoever, using the mail or any facility or means of interstate or foreign commerce, knowingly transfers obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years, or attempts to do so, shall be fined under this title, imprisoned not more than 10 years, or both.
18 U.S. Code § 1466A – Obscene visual representations of the sexual abuse of children
(a)In General.—Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(1)
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)
(A) 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
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.
(b)Additional Offenses.—Any person who, in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(1)
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)
(A) 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
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction.
(c)Nonrequired Element of Offense.—
It is not a required element of any offense under this section that the minor depicted actually exist.
(d)Circumstances.—The circumstance referred to in subsections (a) and (b) is that—
(1) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense;
(2) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer;
(3) any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense;
(4) any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or
(5) the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States.
(e)Affirmative Defense.—It shall be an affirmative defense to a charge of violating subsection (b) that the defendant—
(1) possessed less than 3 such visual depictions; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any such visual depiction—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.
(f)Definitions.—For purposes of this section—
(1) the term “visual depiction” includes undeveloped film and videotape, and data stored on a computer disk or by electronic means which is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, computer image or picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means;
(2) the term “sexually explicit conduct” has the meaning given the term in section 2256(2)(A) or 2256(2)(B); and
(3) the term “graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.
