Risky “sexting”: NC laws create felony conviction trap for minors

North Carolina is one of a handful of states which have not specifically addressed the increasingly common issue of “sexting,” leaving many children unknowingly vulnerable to felonious consequences.

Image: Parenting Pants, (Courtesy of Google Images)

Sexting is a term used to describe the sending or receiving of sexually explicit messages, including images and videos, through devices such as cell phones.  In recent years, with the increase of technology usage amongst teens, there has been an increased prevalence of sexting behavior amongst minors in the United States.  Some of the earliest studies on sexting revealed that between 33% and 40% of teenagers and young adults engaged in some form of sexting.

Many states have responded to the increased sexting prevalence by passing statutes that specifically address sexting behavior.  Unfortunately, North Carolina is in the minority of states which have not updated its statutes in this area.  As such, North Carolina relies on North Carolina General Statutes §14-190.16, §14-190.17, and §14-190.17A to govern sexting behavior involving minors.  Under these North Carolina statutes, minors who have engaged in sexting behavior are considered to have engaged in sexual exploitation of a minor, commonly known as child pornography.  Reliance on child pornography statutes for sexting behavior creates complex legal issues when minors are involved.

Anyone who participates in sexting can be charged and convicted under child pornography laws, including minors. 

The distribution of sexually explicit images amongst minors is considered child pornography, which is a felony.  Since North Carolina does not have specific laws that address sexting behavior, sexting is considered the distribution of child pornography.  Anyone who participates in sexting can be charged and convicted under child pornography laws, including minors.

Furthermore, North Carolina law does not distinguish between or protect personal sexually explicit material versus non-personal sexually explicit material.  Therefore, a minor who is in possession of their own sexually explicit photo is still subject to child pornography laws.  It seems strange that in North Carolina, where the age of sexual consent is sixteen years old, it would be considered legal for a minor aged 16 or over to engage in physical sexual behavior, while it still considered illegal for a minor aged 16 or over to engage in sexting behavior.

The repercussions of minors being charged and convicted under child pornography statutes are severe.  The biggest concern is that minors are at risk for being registered as federal sex offenders.  This consequence alone brings with it other repercussions that will last a lifetime, including living restrictions, restrictions to licensing boards, and education and employment limitations.

These consequences are a stark reality that some minors are now having to face.  The first higher court case involving the transmission of sexually explicit images between youth via a cell phone was State of Iowa v. Canal, 773 N.W.2d 528 (2009).  In Canal, the Iowa Supreme Court affirmed an obscenity conviction of an 18-year-old boy who sexted an explicit photo of himself to a 14-year-old female, after the female repeatedly requested that he send the picture.  Canal’s conviction was upheld despite the consensual nature of the sexting, and Canal was ordered to register as a sex offender.  This case set a precedent that can still be seen today in states like North Carolina, whose statutes still treat minors involved in the offense of sexting as offenders of child pornography law.

There have been some attempts in North Carolina to alleviate serious consequences relating to minors engaging in criminalized behavior.  For example, many point to the recently passed North Carolina “Raise the Age” Bill.  In May 2017, the North Carolina General Assembly passed House Bill 280, which raised the age of minority, allowing for children aged 16 and 17 to be tried in juvenile court for certain crimes.

Since sexting is tried as a federal criminal offense under child pornography statues, any juvenile charged with this offense shall be tried as an adult in superior court.

This bill had the potential to impact minors possessing and/or distributing sexually explicit material via sexting, but the bill has had little practical effect in this area. Juveniles charged with felonies can be tried in superior court as adults.  Since sexting is tried as a federal criminal offense under child pornography statues, any juvenile charged with this offense shall be tried as an adult in superior court.  Thus, the “Raise the Age” Bill does not impact those juveniles being charged and convicted under child pornography statutes.

Although House Bill 280 did not affect the consequences of minors who engage in sexting behavior, the bill does act as an admission from the North Carolina General Assembly that minors should be treated differently under state laws.  If anything, House Bill 280 can be considered a small step towards the realization that the treatment of minors possessing and/or distributing sexually explicit material should be different than the treatment of adults engaging in the same conduct.

As long as North Carolina child pornography laws are used to govern sexting behavior amongst minors, North Carolina minors are at risk for being charged and convicted of felonies. 

Reform on this issue in North Carolina has been met with some adversity.  Critics of reform often point out that prosecutors have some discretion as to which, if any, charges to pursue; however, as seen in recent North Carolina cases, such as the 2015 Fayetteville case in which a minor was charged with sexual exploitation of another minor because of “sexts” found on his cell phone, prosecutorial discretion does not solve the underlying issue.  As long as North Carolina child pornography laws are used to govern sexting behavior amongst minors, North Carolina minors are at risk for being charged and convicted of felonies.

Critics also argue that sexting is an inappropriate behavior, especially involving minors; therefore it is acceptable and well within the state’s best interest for this behavior to remain criminalized and governed by child pornography statues.  Regardless of personal animus towards sexting behavior, the issue of whether the ends (i.e. children becoming felons and federal sex offenders) are truly justified by the means (i.e. the State regulating sexting behavior amongst minors) must be confronted.

It is also important to consider underlying determinant factors of sexting behavior.  Why do minors choose to engage in sexting behavior?  There are many factors that affect a minors’ decision to engage in sexting behavior, including brain development, cognitive abilities, and social-cognitive skills.  The Food and Drug Administration has outlined definitions for pediatric subpopulations, stating that someone is considered a child between the ages of 2 through 12, and is considered an adolescent between the ages of 12 and 21.  This distinction is important when considering sexting behavior amongst minors, because it has been well established that brain development continues through the age of adulthood.

Their actions are guided more by emotions and reactions, and less by logic.

Pictures of the brain in action show that minors’ brains work differently than adults’ when they make decisions or solve problems.  Their actions are guided more by emotions and reactions, and less by logic.  Research has also shown that exposure to drugs and alcohol during teenage years can change or delay these developments.  Therefore, anyone making cognitive decisions under the age of 21, including the decision to engage in sexting behavior, is doing so with an underdeveloped brain, potentially incapable of making a fully rational, cognitive decision.

Research in social-cognitive theory and social-learning theory in adolescents has also found that adolescents are more likely to engage in behavior deemed accepted by peers, and are more likely to copy behavior from peers and role models.  These scientific findings validate much of what we already know about peer pressure.  Peer pressure has a direct impact on sexting behavior because minors are more likely to engage in sexting if they think that their friends accept it and are also engaging in the behavior.

In sum, minors and adolescents function at different cognitive levels than adults, and are also more susceptible to factors such as peer pressure.  These factors make it more likely that a minor would engage in sexting behavior, without fully recognizing the significance of such conduct, especially legal consequences.  Should the impulsive decisions of young people carry consequences as severe as being charged as a felon?  To an adult, sexting may appear to be a reckless and meaningless behavior; however, for a minor, it may not be that simple, especially if a minor does not know and fully comprehend the legal consequences associated with sexting.

North Carolina currently does not have a “sexting” law, and the North Carolina General Assembly should seriously consider filling this gap by addressing sexting behavior in a state statute.  The issue of minors engaging in sexting behavior is gaining public attention and should be a public concern, as it affects the future of today’s youth.  Many believe there is a strong need for reform in North Carolina law to address sexting behavior.

The legal, social, and lifelong consequences that can result from current North Carolina laws governing sexting behavior appear to be too severe for minors.  Minors who commit consensual sexting with other minors, or who possess sexually explicit material of themselves, arguably should not be penalized with felonies.  Minors and young adults through the age of 21 function at a lower cognitive level than older adults, and are scientifically unable of making logical adult decisions.  Furthermore, minors are more susceptible to behavior influences such as peer pressure.  Understanding these behavior determinants can inform and further assist in future sexting law reform efforts.

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About Elizabeth Barrett Savage (2 Articles)
Elizabeth “Brooks” Barrett Savage is a third year, dual degree JD/MSPH/LLM student at Campbell Law. Hailing from Dunn, North Carolina, Elizabeth attended East Carolina University and obtained a Bachelor of Science in Exercise Physiology. Her continued work in student government at ECU, and dedication to representing the interests of her fellow peers, ultimately led her to choose to attend Campbell University School of Law. Immediately following her first year of the law program, Elizabeth worked with Legal Aid of North Carolina, Inc. as a Martin Luther King, Jr. Intern, and during that time assisted in advocating for victims of domestic violence. While at Campbell Law, she has continued her calling to serve her community by dedicating her time to pro bono service. Last year she served as the 2017-18 Campbell Law Domestic Violence Advocacy Project Co-coordinator, and this year she is serving as the 2018-19 Campbell Law Pro Bono Council Director, as well as participating in the Community Law Clinic. In the past, Elizabeth has externed at various organizations, including the North Carolina Coalition Against Sexual Assault, CommWell Health, Lieutenant Governor’s Office of North Carolina, and the Medicaid Investigations Division of the North Carolina Department of Justice. Elizabeth is interested in international affairs, and is pursuing a LL.M degree through Nottingham-Trent University while at Campbell Law. However, Elizabeth also has a particular interest in health law, and plans to focus her Campbell Law Observer writing in the area of health law.