Sexting: Not Just Embarrassing! Criminal Responses to Teenage Actions
Anthony Weiner’s example notwithstanding, it seems that teens don’t understand the consequences of “sexting”—sending nude pictures of themselves, of their bare breasts or genitals, or of other teens in a similar state of undress via cell phone emails, texts, SnapchatTM, or other similar internet options. Law enforcement and prosecutors in Arizona can choose to enforce laws against a juvenile for possessing and sharing these pictures through either standard criminal statutes or through a statute designed to protect juveniles from their own lack of insight. The choice may mean the difference between the teen possibly being labeled a sex offender until his/her 25th birthday for a Class 4 or 5 felony or having a petty offense designation.
Typical “sexting” situations arise from a teen photographing him/herself using a cell phone or the camera function on the computer and then sending the photo to another person with whom the teen is “in love.” The recipient may then keep the picture and show it to friends. If the recipient emails it to friends, they may, in turn, email it to their friends. Even if the recipient originally keeps the picture to him/herself, if the teen moves on to another relationship, the now disillusioned party may decide to get revenge by sharing the picture with others. If the recipient is the one who moves on, a new love interest may discover the picture and decide to send the picture around in order to cause the original sender embarrassment.
Another “sexting” situation may occur when a person for whatever reason uses his/her cell phone to secretly photograph or videotape another teen or group of teens changing clothes or showering in the locker room or being nude or only partially clothed in any other location where the others believe that they have privacy. These photos or videos may again be possessed by the individual or forwarded to others via email, text, or some form of social media.
The following descriptions of Arizona statutes contain graphic terminology; the full text of the statutes can be located at http://www.azleg.gov/arstitle/.
- “Voyeurism” under A.R.S. §13-1424, occurs when a person invades the privacy of another person for the purpose of sexual stimulation, then discloses, displays or distributes the photograph, videotape, film or digital recording that is made without the consent of the person who is shown. If the person is recognizable in the picture, it is a class 4 felony; if the person is not identifiable, it is a class 5 felony.
- If a picture of a person “in a state of nudity,” taken while the person was expecting privacy, is shown or threatened to be shown, it is a class 5 felony in violation of A.R.S. §13-1425, “Unlawful disclosure of images depicting states of nudity”. If the picture is disclosed with the intent to harm, harass, intimidate, threaten or coerce the person in the picture, it is also a class 5 felony. If the picture is distributed through the internet, then it becomes a class 4 felony. NOTE: If the person depicted in “a state of nudity” is the person who sent the picture to the other person originally, expecting that person to keep the photo private between them, the fact that the photo was sent does not, in itself, change the expectation of privacy that the person had when the photo was sent.
- “Surreptitious photographing, videotaping, filming digitally recording or viewing….”, A.R.S. §13-3019, is committed by, again, knowingly photographing, videotaping, filming, etc. another person without that person’s consent, when the person is in a “restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy…and the person is dressing, undressing, nude….” It can also be charged if the person is pictured in “a manner that directly or indirectly captures or allows the viewing of the person’s genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.” This crime does not require the person taking the picture to be doing so for sexual gratification. It is illegal to distribute the picture without the consent of the person depicted. Taking the picture is a class 5 felony; distributing the picture is also a class 5 felony. If the person can be recognized in the picture it is a class 4 felony.
- “Sexual exploitation of a minor” under A.R.S. §13-3553, a class 2 felony, can be charged when a person possesses a picture of a person under the age of 18 and the picture shows the minor’s genitals, pubic or rectal areas.
- A.R.S. §13-3559 provides a defense to a prosecution under A.R.S. §13-3553 if the discovery or receipt of this unsolicited depiction of a minor is reported to a law enforcement officer.
Realizing that young people often lack the maturity to deal with inappropriate requests to take nude pictures of themselves or when inappropriate pictures of other students are shared with them, the legislature has provided the police and prosecutors with another route for dealing with the “sexting” phenomenon rather than the strong reprisals found in the statutes quoted above.
- Under A.R.S. §8-309, “Unlawful use of an electronic communication device by a minor…”, it is unlawful for a minor to use an electronic communication device, like a cell phone, iPad, or other similar devices, to transmit or display “a visual depiction of a minor that depicts explicit sexual material.” “Explicit sexual material” is defined as “material that depicts human genitalia or that depicts nudity, sexual activity, sexual conduct, sexual excitement or sadomasochistic abuse as defined in section 13-3501.” Possessing or displaying the picture to one other person is a petty offense. It is a class 3 misdemeanor if the juvenile transmits or displays the picture to more than one other person. It is also a petty offense if the juvenile intentionally possesses a visual depiction of a minor that was electronically transmitted to them. A defense to these charges is for the student who gets one of these photos via email, text, SnapchatTM, etc., unsolicited from another person, to either destroy or eliminate the picture or to report it to his/her parents or guardian, a school official, or to the police or other law enforcement officer.
Since the prosecutor or law enforcement officer may be unaware of A.R.S. §8-309, the school official or the student’s parent may wish to bring it up as an alternative charge when a student is found to be possessing an inappropriate picture of him/herself or a classmate or to have sent such a picture to others.
The draconian nature of the statutes also should provide a warning to school officials who discover such pictures on student cell phones or electronic devices: Do NOT copy and save the pictures to the school computer, notebook, or cell phone. Instead, secure the phone or other electronic device and provide it to law enforcement. The officer can then legally take any necessary screen shot to avoid losing the image, save any metadata, erase the image and return the device to the student.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Sexting, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.
 “Picture” for purposes of this article, and for ease in explaining the statutes, will include a photograph, videotape, film or digital recording.