Can Teenagers Legally Possess Their Own Pictures?
A North Carolina case involving teens charged with possessing their own naked selfies raises new questions about the scope of child pornography laws. The case suggests some laws intended to stop sexual exploitation of minors are poorly crafted and prone to prosecutorial abuse.
Legal experts cited in media accounts have widely ridiculed the North Carolina prosecution as overreaching, ludicrous and victimizing the very children such laws are intended to protect. Yet, two teens charged in the case agreed to misdemeanor plea deals rather than face felony prosecution as adults and potentially be required to register as sex offenders.
The case started with an investigation of teens allegedly circulating nude pictures of other youths without their permission. Two teens charged were 16 years old at the time investigators discovered their images, which were unrelated to the matter under investigation.
One of the 16-year-olds reportedly had on his cell phone four nude images of himself along with a naked image of his girlfriend. According to news reports, she also had a nude picture of herself stored on her cellphone. Charged as adults, the teens were each accused of exploiting themselves as children.
Can Oklahoma Teens Be Convicted for Nude Selfies?
Although no similar case has surfaced here, Oklahoma child pornography laws could include a loophole such as the one North Carolina prosecutors exploited to prosecute the teens. Oklahoma’s loophole could even allow prosecution across state lines of youths who have never set foot in this state.
Such overzealous prosecutions are conceivable even despite lawmakers’ effort to reduce the impact of child pornography prosecution when youths distribute prohibited images. In 2013, Oklahoma lawmakers gave prosecutors the option of charging youths with a misdemeanor rather than a felony in some child pornography cases.
The newly added Okla. Stat. tit. 10A § 2-8-221 allows prosecutors – at their discretion – to charge youths under the juvenile code or as an adult under Okla. Stat. tit. 21 § 1040 13a (2007). The 2013 Oklahoma statute that allows misdemeanor prosecution of juveniles for transmission of child pornography sets out different penalties depending on:
- whether the child depicted was under 13 or older than 13,
- whether the child depicted consented to the transmission and
- to how many destinations images were sent.
The juvenile code provides an affirmative defense when the accused does not relay an image to someone else. A child who receives an unsolicited obscene or pornographic image of a minor and does not forward the image can be exempt from prosecution.
That affirmative defense, however, is only available under the juvenile code, to be applied at a prosecutor’s discretion. Children who receive and store images of their friends could be prosecuted as adults.
Romeo and Juliet Laws
Sometimes called a Romeo and Juliet law, the 2013 statute is among those adopted by as many as 30 states with regard to sexually explicit images distributed by minors. Similar Romeo and Juliet laws in Oklahoma and elsewhere also provide leeway for minors near the same age who engage in consensual sexual conduct that could otherwise be considered statutory rape.
There are a few problems, however, with the Oklahoma Romeo and Juliet law regarding sexually explicit images minors might take of themselves. The first problem is the law’s internal inconsistency.
The law contains conflicting language with regard to selfies. In each subsection defining levels of criminality, lawmakers refer to transmitting images “of another minor” as a necessary element of the crime. Yet the law also says, “[t]he fact that the individual making the transmission and the individual pictured are the same does not alter the criminality provided in this section.”
It could be anybody’s guess whether courts would convict only those youths who distribute images “of another minor” or would apply the law when minors distribute their own images. One can likewise only speculate as to how Oklahoma courts would view laws that ban voluntary exchange of nude or sexually explicit images among minors, even though sexual activity among those same minors might be legal.
Oklahoma’s more troublesome child pornography language include a broad geographic reach – across state lines — and vaguaries that could criminalize teens for mere possession of their own naked selfies.
Oklahoma child pornography laws extend to any computer-related device in the state, regardless where the user is located. With regard to teens’ own images, that could be construed to apply to any child anywhere whose naked or suggestive selfies might inadvertently be stored on cloud computing devices owned by tech giants and located in Oklahoma.
Oklahoma, From Sea to Shining Sea
Under the Oklahoma criminal code, California children could conceivably be prosecuted as adults in Oklahoma for storing their own selfies on servers in Oklahoma, or for storing images sent to them by other youths. If California youths share their selfies with their young lovers using computer equipment located in Oklahoma, they might be subject to prosecution in Oklahoma either under the juvenile code or as adults for transmitting child pornography.
What’s more, Oklahoma’s felony statute for Soliciting Sexual Conduct or Communication with Minor by Use of Technology — Okla. Stat. Tit. 21 § 1040. 13a — has no specific exemption for consensual communication among minors, nor exemptions for a child’s private transmission of their own private selfies to a private cloud storage device. Like the juvenile code, the adult sexual-communication-with-a-minor law reaches into any computer-related device in the state, regardless of where a violator is located.
A zealous prosecutor in Mayes County could conceivably level felony charges against teens anywhere in the nation – or the world — whose nude selfie is transmitted via a tech giant’s server farm in Pryor, Oklahoma. Even Internet routers that relay traffic among states through Oklahoma could be targeted.
As a matter of fact, Oklahoma’s felony sexual communication with a minor law is so broad, two teen lovers – even if they are married and even if they never visited Oklahoma – might be prosecuted for exchanging text messages to arrange an otherwise lawful sexual encounter. It could even be construed as a felony for out-of-state teens to so much as muse about their sexual desires in text messages that traverse Oklahoma Internet resources.
Yet, none of the loopholes we have explored so far provide for prosecution of minors who merely store their own selfies on cell phones with no cloud storage. That prosecutorial loophole might be found elsewhere. Check out Oklahoma Laws on Obscenity and Child Pornography – Okla. Stat. tit. § 21 1021-1024. That is the law that, among other things, bans possession of child pornography.
Now, when we point out prosecutorial loopholes, we are not saying the law should be read so broadly. Nor are we saying we could not and would not fight such an overreaching prosecution, fully expecting to win. Legal experts quoted in media reports about the North Carolina case tended to agree, the prosecution stepped beyond the intent of the law, if not the letter of the law.
Such move by a prosecutor in Okahoma would similarly be overreaching, off-target, misguided and, we would argue, contrary to the intent of the law. It might be unconstitutional according to U.S. Supreme Court precedents in a landmark child pornography case.
We will explain. First, let’s traverse the far reach by which an Oklahoma prosecutor could conceivably charge a teen for possessing their own sexual selfie, then cajole them into a misdemeanor plea deal. Incentive to take a plea would the threat of conviction on felony charges, which would require registration as a sex offender and cast the long cloud of sexual deviant stigmas.
Oklahoma child pornography law at Okla. Stat. tit. § 21 1021.2 (B) says “The consent of the minor… to the activity prohibited by this section shall not constitute a defense.” That could mean your consent as a teen to taking your own sexy selfie is no defense – if the selfie is described as child pornography.
Oklahoma Child Pornography Definition
And what is child pornography in Oklahoma? The statute includes a very specific list of sexual acts that are spelled out for a good reason – to protect children against exploitation. Skipping past the most graphic elements, we are left with “any visual depiction…where the lewd exhibition of the uncovered genitals, buttocks or, if such minor is a female, the breast, has the purpose of sexual stimulation of the viewer.”
Beware, any overzealous prosecutor who might dare to embarrass an Oklahoma child by suggesting they are liable for a felony under those terms for admiring their own selfie. We do not believe that is why Oklahoma lawmakers put that language in the law.
Laws against child pornography are intended to protect children against victimization, not victimize children with ham-handed prosecution. The U.S. Supreme Court might agree. Or not.
In Stanley v. Georgia, 394 U.S. 557 (1969) the court acknowledged a constitutional right to possess and view obscene materials in the privacy of one’s own home:
“Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home” the Stanley court wrote. “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
When children are involved, the subject has been more complicated. Courts continue to weigh lawmakers’ effort to protect children from exploitation by child pornographers against a constitutional right to freedom of thought. Relevant cases so far have emphasized that prohibitive laws must serve the purpose of protecting real children from exploitation.
New York v. Ferber, 458 U.S. 747 (1982) affirmed a New York law banning the sale of child pornography, beyond and apart from the court’s established test of obscenity. In Osborne v. Ohio 495 U.S. 103 (1990), the court affirmed that Ohio “may constitutionally proscribe the possession and viewing of child pornography.”
Laws May Only Protect Real Victims
Then, in Ashcroft vs. Free Speech Coalition 535 U.S. 234 (2002), the court addressed the subject of virtual child pornography. The court decided the U.S. Child Pornography Prevention Act of 1996 could not ban “speech that records no crime and creates no victims by its production.”
The court in that case relied on Ferber, which had otherwise affirmed states’ right to ban the sale of child pornography. In the 6-3 opinion, Justice Anthony Kennedy stated:
“Ferber’s judgment about child pornography was based on how it is made, not what is communicated.”
Collectively, the court’s decisions authorized prohibition of child pornography to protect children from victimization. The Ashcroft court was clear that child pornography could be banned because children are exploited in production, and not because of particular content in fictional material.
In the wake of Ashcroft, Congress quickly reworked its effort to ban virtual child pornography. Congress enacted the PROTECT Act, parts of which were affirmed in U.S. v. Williams, 553 U.S. 285 (2008). The Williams court upheld prohibitions against “offers to provide or requests to obtain child pornography (that is) categorically excluded from First Amendment protection.”
The Williams court appeared to leave intact the Ashcroft presumption that child pornography laws must protect “real” child victims in order to pass constitutional muster:
“A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children” the court concluded (original emphasis).
The Williams court noted that Osborne allowed prohibitions against child pornography involving actual children because “it springs from a grievous harm to children.”
Lower federal courts, however, have subsequently upheld convictions under the PROTECT Act for possession of fictional child pornography. (U.S. v. Mees 2009, 8th Circuit 2009, U.S. v. Ryan, 2nd Circuit 2009, U.S. v Whorley, 569 F.3d 211 (4th Cir. 2009)). Although the Supreme Court declined to review Whorley, legal scholars suggest the matter of virtual child pornography might warrant further Supreme Court review.
Throughout its cases on child pornography, the court has tried to balance individual freedoms guaranteed by the First Amendment against a legitimate government purpose of protecting children from exploitation.
According to the U.S. Supreme Court, the purpose of child porn prohibitions is to shut down a market that exploits children, not to ban otherwise offensive but constitutionally protected forms of thought. The only reasonable rationale by which the government could claim a selfie on a teen’s phone somehow poses a threat to children would be if it promoted a market for such imagery.
The court subjects laws that regulate the content of speech to strict scrutiny. That means such laws must be narrowly tailored to meet a compelling government interest. A law that attempts to protect children by criminalizing the exploited child might not pass such strict scrutiny. A more narrowly tailored law that prohibits possession of those images by anyone other than the children depicted would accomplish the same purpose.
Free Consultation: Tulsa Defense Attorney
Child pornography laws are both strict and complex. Police and prosecutors systematically enforce those laws with extreme zeal. Empowered by poorly crafted laws written in overly broad language, a prosecutor’s overzealous enforcement can sometimes lead to to unjust results.
If you have a question about pornography laws in Oklahoma, contact a Tulsa attorney at Wirth Law Office for more information. For a free consultation with a Tulsa criminal defense attorney, call (918) 879-1681.
Tags: 1st Ammendment