What Images Are Considered Inappropriate
When we discuss the question of what constitutes inappropriate images, the question often becomes a question of whom is asking the question. The most common standard used by governments, at least in the U.S., is the Miller test, which asks three questions that must all be answered affirmatively before an image can be deemed unlawful under current obscenity laws. The three questions are:
While the Miller test, and other similar tests, may apply to obscene images otherwise protected by First Amendment rights, they do not apply to child pornography as defined by federal law. Federal law defines child pornography as images that depict sexually explicit sexual acts where one participant is prepubescent or is otherwise unable to protect herself or himself from harm , someone 18 years of age or older is depicted to have had to have used coercion, fraud, or force to have engaged in sex with a person under the age of 18 (or to have encouraged a minor to engage in sex acts while the minor was in a position that prevented the minor from escaping or rejecting the sex act), or where the photographer is deemed to have "used an artistic effort to render" a sexual experience that lacked any rationale other than to elicit sexual desires. As a result, images depicting nudity or "plain and ordinary" sexual activities may nonetheless not be considered "obscene."
The relevant issues for purposes of determining whether it is illegal to send such images come down to one question: who received the image? If the audience was a minor, then it is presumably not permitted.
Major Federal and State Laws Governing This Issue
Tweeting explicit photos to a minor is a crime under the federal PROTECT Act, which specifically prohibits the use of a computer to send obscene material to a minor or to induce a minor to engage in unlawful sexual acts. A conviction under the PROTECT Act is a felony punishable by a fine, prison sentence, or both for the defendant. State laws also apply. For example, Virginia Class 1 misdemeanors include knowingly "distributing, possessing with intent to distribute, or reproducing an identifying photograph…of another person without his consent, with the intent to use…improving the person’s image for commercial purposes." Virginia state punishments for Class 1 misdemeanors include jail time, fines and/or community service.
Possible Criminal Charges and Penalties
While the criminal laws are relatively severe, child pornography laws are thought to have significant deterrent effect. As such, an individual who has received inappropriate photos from a minor could find themselves facing a number of criminal charges.
Under Section 163.465, for instance, the state of Oregon considers it a Class B felony to manufacture, transfer, possess or sell depictions of a person under 18 years old engaging in sexually explicit conduct. Class B felonies are punishable by a maximum fine of $250,000 and up to 10 years in prison.
Sex offenders convicted of felonies will also be dealing with lifelong ramifications on top of imprisonment and fines. All sex offenders are required to be registered, and depending on the nature and severity of the crime that they committed, an individual could be forced to register for life. Registration comes with a number of ongoing punishments, such as periodic check-ins with law enforcement, as well as restrictions on where individuals can travel and even reside.
Should the individual have children of their own, this could prevent them from having custody, as courts will not allow a sex offender to have custody or visitation rights for fear of the potential risk the children may face.
Defenses and Rights of the Accused
When accused of sending inappropriate images to a minor, the individual can present several defense possibilities, which may be vital to his or her case if criminal charges are filed. Conditions exist under which liability may be diminished or altogether eliminated. These include allegations of intent to engage in illegal sexual conduct, as described in California Penal Code 261.5. If a defendant is accused of sending or making available images alleged to be child pornography under California Penal Code 311.11, he or she might also have an effective defense. Conduct by the accused that does not amount to guilt under the law may include: If a person received the image innocently, or if the image was deemed acceptable in the recipient’s environment or situation, the crime would not apply. Attempts to lure a minor into further sexual contact with requests for more sexual material under California Penal Code 288 or California Penal Code 653 . 31 have been effective defenses in the past, as would attempts to solicit a minor to commit sex acts by offering sexual material in exchange for such acts, under California Penal Code 288.2. The accused may also face requirements under California Penal Code 290, which offers further defenses or relief. In addition, sex offenders registered under California Penal Code 290 are designated into three levels: one, two or three. These levels include offenders with less serious offenses, such as misdemeanor and felony offenses. Additionally, first-time offenders might be able to expunge their criminal records. Because these legal defenses can be complex and each case can involve aspects that vary from another, it is critical that the accused consult an attorney experienced specifically in these particular charges. Due process demands that the accused be protected from unfair penalty until all relevant circumstances can be comprehensively heard.
Implications for Occupation and Private Life
With the ramifications of both criminal and civil law, the act of sending inappropriate images to a minor can have a devastating impact on one’s job prospects and career opportunities. A young professional who is just beginning to make a reputation for themselves, whether they are a doctor, teacher or in another demanding field such as law or business, can find even the possibility of being charged with a crime stigmatizing. Considering that many private sector staffing agencies will do thorough background inquiries for potential employees, a criminal charge can result in the loss of a lucrative job offer.
A long period of unemployment can have a catalyzing impact on an individual’s finances. This can mean taking a job that does not utilize their employer’s skills, something that would ordinarily never be considered. It may also mean taking an underpaying job simply because it is extraordinarily difficult to find other employment. This can mean that an individual has to turn down job offers, something that can quickly start a downward slide on one’s personal and career goals.
There is also the personal ramifications that come from being charged with sending obscene material to a minor. One only needs to look at the social ostracization felt by other individuals who have been convicted of sex crimes to see how socially devastating it can be to be associated with not only a criminal act, but a socially unacceptable one. Friends and family can suddenly treat you with distain. You are suddenly the subject of gossip and innuendo. Even innocent friendships are strained as the victim of the crime may be uncomfortable being seen in the presence of someone so socially unacceptable.
Individuals are judged first and foremost on their personality, considering that few people are willing to risk their own reputation for someone they just met. A reputation for having made a major social blunder can make it considerably more difficult to meet new, and potentially important, people. For some individuals, this can even be a blow to their social capital. An individual can find that their life, which may have once had deep social and personal worth, can suddenly be lacking in both.
Countermeasures and Safe Digital Communication
Due to the pervasiveness of technology, young minds are not only exposed to a wider array of images at an accelerated rate, but also have an increased likelihood of finding themselves as victims or perpetrators of indecent material. This is due, in part, to the speed with which information travels through the digital world and the deluge of images received via social media. According to common sense media, 45 percent of 10-year-olds own or have access to a smartphone, 68 percent of 10-year-olds text, 61 percent of 10-year-olds go online every day, and 2 out of 5 10-year-olds visit sites intended for adults, "most often via links from friends." Thus, unfettered access to digital media can increase the risk that young people will receive unwanted images. The whirlwind of images and messages encircling young minds can also result in a misinterpretation of what is appropriate.
As such, it is imperative to practice responsible digital communication. All individuals need to exercise caution and judgment while communicating digitally, particularly when there is a substantial possibility of direct or indirect consequences to others. Even supposedly private messaging platforms like Snapchat and Instagram have features that can lead to a visual clip or message being shared unexpectedly . When youth are exposed to inappropriate content, it is important to talk to them, explain what they saw, how it is dangerous or harmful, and what steps they can take to limit their exposure. It is also crucial for parents to teach their children about appropriate private and public communications. Youth should be taught to speak up if someone has been inappropriately communicating with them.
While the law does not require communication devices to block all pornographic content, precautions can and have proven effective in reducing the likelihood that children will be exposed to inappropriate images. For example, the National Center for Missing & Exploited Children recommends the following:
Ultimately, responsible digital communication requires a multi-pronged approach. Educating young people about what is appropriate, discussing these topics openly so that youth feel comfortable talking about their experiences and what they see online, and implementing protective devices are all necessary. Most importantly, individuals need to understand the legal risks associated with sending inappropriate images to minors. These risks are magnified for departments and employees of the state, who may face substantial liability pursuant to the U.S. Code.