By Rebecca L. Hamilton, Attorney at Law, Hamilton Law
We live in an age where there is less privacy and more opportunity to inadvertently or unintentionally break the law using our many forms of media. Take the internet and cell phones, for example. These days, tweens and teenagers have increased access to them, with little or no supervision. Once materials are dispersed through the internet by email or text, they can go “viral” and there is little or nothing that can be done to stop it. Not only are our teens and tweens exposed to danger by predators and not to mention bullies, who use this information to blackmail them, they can be referred for prosecution for sexting and in some cases, distributing pornography, a felony which carries a sexual offender designation which cannot be removed.
Florida Statute 847.0141 states that a minor commits the offense of sexting if he or she knowingly “[u]ses a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity…and is harmful to minors.” “Harmful to Minors” is defined under Florida Statute 847.001 (6) as follows: means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it: a) predominantly appeals to a prurient, shameful, or morbid interest; b) is patently offensive to prevailing standard in the adult community as a whole with respect to what is suitable material or conduct for minors; and c) taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
If the transmission or distribution of multiple photographs or videos took place within a 24 hour period, it is a single offense and is punishable as a non-criminal violation is punishable by 8 hours of community service or a $60 fine. The court may also order the minor to participate in “suitable training or instruction in lieu of, or in addition to, community service or a fine.” After being prosecuted for a non-criminal violation for a first offense, if a minor is found to be guilty of a second or subsequent offense of sexting, they will be prosecuted for a misdemeanor and then a felony for a third incident.
The problem with this section of the Florida statute, which was meant to decriminalize a first act of sexting, done ignorantly and impulsively by minors who do not have the mental capacity to make good decisions that adults have, is that it omits protection for transmission of photographs or videos that depict “sexual conduct” or “sexual excitement.” “Sexual excitement” is defined in Florida Statute 847.001(17) as the condition of the human male or female genitals when in a state of sexual stimulation or arousal.” “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party…” So with these broad definitions of sexual conduct and sexual excitement, you can see how easy it is for a zealous police officer and/or prosecutor to push for criminal prosecution for a first time offender. This statute also fails to product conduct that took place longer than a single 24 hour period.
One case represented and defended by this firm involved a minor who had emailed a few video clips containing nude images of herself to another student. The parents, thinking they were helping, allowed law enforcement into the home, allowed the officer to access the internet and email where the videos were transmitted, and allowed the officer to speak alone with the minor. All of these well-meaning acts of these parents led to the police referring the minor’s case to the state attorney’s office to be prosecuted as a felony transmission of pornography over the internet. This 14 year old could have been not only prosecuted as a felon, but labeled as a “sexual predator” with a “sexual offender designation,” which would have followed the minor the rest of his life. A good defense was deployed early and aggressively on this minor’s behalf and the minor was thankfully spared from this devastating and lifelong mark.
Remember to always monitor your tween and teen’s use of the internet and cell phone. Talk about this statute with your minor. Explain to them the dangers they face by predators, bullies, and law enforcement if they transmit pictures or videos containing nudity. Also impress upon your children that a girlfriend or boyfriend is not being “loving” by asking your minor child to send naked pictures of him or herself. And remember, if your minor child is being questioned by school or law enforcement officials regarding any alleged act of “sexting,” call Hamilton Law immediately to know your rights and protect your minor child. Prevention is key, as it is a tough situation for parents to be in, to choose between calling law enforcement to protect their child from cyber bullying or predators, and their child’s future interests regarding criminal prosecution.