John, a minor, uses his cellphone to text Amy, who is also a minor. John asks Amy to send him photos of her topless, and she does. John keeps the images on his cell phone, shows them to his friends, and sometimes texts them to others.
What law or laws do you think John may be violating? [Sexting denotes the practice of sending nude pictures over cell phones. Authorities say it is most common with middle and high school students.]
The Law: Cases that have been adjudicated all appear to have been heard in JDR Courts. There is currently no federal or state law in Virginia on sexting, and there is much debate as to how to handle this issue. However, child pornography statutes, because of the way they are drafted, could be applicable.
Va. Code § 18.2-374.1 criminalizes the production and distribution of child pornography. If a minor takes a photo of himself, it is a violation of subsection (B) (2). If the minor is under the age of 15, it is an unclassified felony carrying from 5 to 30 years. If the minor is 15 or older, it is an unclassified felony carrying from 1 to 20 years.
Va. Code § 374.1:1 criminalizes the possession of any such photos that are sent, making it a Class 6 felony for a first violation, and a Class 5 felony for a second violation. If the recipient of the photos then digitally passes them on to a friend, or even just displays them on his phone to another, his act of distribution or display is an unclassified felony carrying from 5 to 20 years. A second act of distribution or display also carries from 5 to 20 years, with a mandatory minimum punishment of 5 years.
Under Virginia law, actual nudity is not required for the images to be child pornography. Under the relevant definitions provided by Va. Code § 18.2-390, “nudity” includes “a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple....” The nudity must involve a lewd exhibition; not all naked pictures of children qualify as child pornography. Asa v. Commonwealth, 17 Va. App. 714 (1994).
A minor can also break the law if he solicits his girlfriend to give him a nude photoof herself. A solicitation to a minor to be the subject of child pornography is a violation of Va. Code § 18.2-374.1(B), and carries the same penalties as the actual production of child pornography. Additionally, if the minor communicates his solicitation by e-mail, phone, cell phone, or other communications system, it is a violation of Va. Code § 18.2- 374.3(B), which is a Class 6 felony.
Registration Under current Virginia law, juveniles are subject to the registration requirements of sex offenders if: They are tried as adults; or They are over the age of 13 at the time of the offense, and The Commonwealth’s Attorney makes a motion for the juvenile to be registered as a sex offender, and The court finds there are sufficient aggravating factors to require registration. Juveniles who are adjudicated delinquent of a sexual offense are not automatically required to be registered. Federal Adam Walsh Act: The Adam Walsh Act does not require that juveniles who engage in sexting be placed on a sex offender registry.
Bottom Line: Some prosecutors may not want to prosecute children for possession and/or distribution of pornography, but they CAN.