Can minors be charged and convicted for possession and distribution of child pornography for having naked selfies of themselves on their phones? In North Carolina, the answer is yes.
A seventeen year old from Fayetteville, North Carolina, recently plead guilty to manufacturing and distributing child pornography for having naked pictures of himself and his girlfriend on his phone. The photos were obtained in the midst of local law enforcement officers investigating a larger problem of sexually explicit photos circulating around a high school in Cumberland County, Jack Britt High School. In an attempt to locate evidence, many phones were searched in hopes of discovering pictures of the incident. Of the phones searched, one belonged to Cormega Copening, a high school quarterback.
Copening and his girlfriend plead guilty to misdemeanor disseminating harmful material to minors
Although Copening was not a suspect at first, investigators were hoping to find any related pictures circulating on students’ phones. Instead, investigators found nude photos of Copening and his girlfriend, Brianna Denson. Subsequently, the couple was charged with manufacturing and distributing child pornography.
Copening racked up five felony counts of sexually exploiting a minor: two for his own nude selfies, two for “sexting” the nude selfies to his girlfriend, and one for possessing an explicit photo of Denson on his phone. Similarly, Denson was charged with two felony counts of sexual exploitation of a minor: one for taking a nude selfie and another for sending it to Copening.
In order to avoid trial and the potential sentence of 4 to 10 years in prison, respectively, both Copening and his girlfriend plead guilty to misdemeanor disseminating harmful material to minors. Both are serving twelve-month sentences of probation.
“it’s dysfunctional” to charge people for possession of their own images
The sexual exploitation statutes from which the couple was charged can be found in the North Carolina General Statutes, §§ 14-190.17 and 14-190.17A. Under § 14-190.17, any person who knowingly produces or distributes images of a minor engaged in sexual activity will be in violation of the statute. Under § 14-190.17A, any person who knowingly possesses an image of a minor engaged in sexual activity is in violation of the statute. According to the statute, the couple’s conduct constituted sexual exploitation of minors.
The prosecution of Copening and Denson have lead to the following implications: 1) whenever a minor is taking a nude selfie, they are producing child pornography, 2) whenever a minor sends a nude selfie, they are distributing child pornography, and 3) whenever a minor receives a nude selfie, they are in possession of child pornography.
The whole ordeal has gained global notoriety and drew criticism from legal scholars and politicians alike. Justin Patchin, a professor of criminal justice at the University of Wisconsin, and cyber bullying expert, stated that “it’s dysfunctional” to charge people for possession of their own images. He further stated that he doesn’t think it should be a criminal offense for such an action that does not have a victim.
North Carolina is one of just two states that automatically tries 16-year-olds as adults.
Apparently when police filled out the charging documents, Copening was labeled both as the culprit and the victim. North Carolina Lawyers Weekly stated that Copening’s age “traps him in a sort of sexting legal netherworld,” where he is accused of exploiting a minor, but is charged as an adult. North Carolina, too, is one of just two states that automatically tries 16-year-olds as adults.
One of the obvious issues presented under these circumstances is that there are two different definitions of a “minor” in North Carolina. Under N.C. Gen. Stat. § 14-190.17, a minor is anyone under the age of eighteen. However, if the individual is the culprit of a crime, that individual is an adult if at least sixteen.
More uniformity between the laws would help prosecutors avoid perplexing situations like the present case. The North Carolina House of Representatives sought to pass “Raise the Age” in the 2013-2014 legislative session, but was unable to receive support in the North Carolina Senate. Representative, Marilyn Avila (R-Wake) sponsored HB725 or the Young Offenders Rehabilitation Act. If the bill had passed, its effect would allow prosecutors to exonerate minors in situations similar to the present facts and circumstances or at the least subject minors to jurisdiction of juvenile courts. However, its defeat means that similar legislation will likely not be considered until 2017.
The Sheriff’s office and District Attorney defended their roles in the prosecution stating that it is not their jobs to make the law, but only to enforce it.
In the case of Copening, the more glaring issue however, is whether the District Attorney should have even prosecuted this case under the sexual exploitation statute. The Sheriff’s office and District Attorney defended their roles in the prosecution stating that it is not their jobs to make the law, but only to enforce it. This case presents a unique situation because the present issue that law enforcement and the District Attorney had to deal with was unprecedented. Under the statute and laws of this state, Copening and Denson were technically guilty of sexual exploitation of a minor based on their ages and the items found on the phone.
Further, the Sheriff’s Department and District Attorney’s Office affirmed their decision to go through with the prosecution stating that it served the public policy They continued that by prosecuting the couple; they are saving others from committing similar mistakes in the future. It appears the opinion of the Sheriff’s Department and District Attorney’s Office is that, by prosecuting the couple, it serves as an example to prevent young people from sending naked pictures to each other and save them shame and embarrassment down the road. It appears they were prosecuting Copening and Denton for the purpose of deterrence.
“This [case] demonstrates an utter failure to understand the nature of sexual exploitation . . .”
The District Attorney’s assistant reduced the teens’ charges to misdemeanors through the use of plea bargains. In doing so, the teens are held responsible for their actions, are punished for their wrongful actions, but ultimately are left without convictions on their records.
Even though this whole predicament will likely leave no lasting consequences on the teens, was all of this work really justified? The original architect of the statute, Representative Paul Stam of Wake County, said the statute was misapplied in this instance. He stated: “I would think normally as a matter of prosecutorial discretion you would not charge a minor with sending a minor — having her own picture or sending to another minor — (that) would seem to me not the thing that most prosecutors are elected to do.”
Another criticism came from Mary Anne Franks, University of Miami law professor told Washington Post, who stated that: “This [case] demonstrates an utter failure to understand the nature of sexual exploitation. Consensual sexual activity among peers should not be a crime; we should not allow our social hysteria over teen sexual activity to justify prosecutions that will destroy teenagers’ lives ‘for their own good.’”
Regardless of whose side you’re on, the question presented is whether the statute should be reconstructed so that this “technicality” never happens again. Even in light of the public policy, applying the sexual exploitation statute to these facts and circumstances, the severity of the punishment is crippling to the future to any adolescent.
North Carolina should reform the law so that minors consensually sending sexually explicit photos are not criminalized under the sexual exploitation statute intended for the real threats to the community.
The sexual exploitation charge is unlike a speeding ticket, simple possession, or underage drinking offense. A sexual exploitation offense has the potential to send you to prison with violent offenders and leave a permanent stain on your reputation by deeming the violator a sex offender, and forcing them to register as a sex offender for life.
The statute is outdated and does not take into account cell phone capabilities and the evolving toleration of various sexual and romantic practices. The statute in question was enacted in 1990. In 1990, the Simpson’s had just aired for the first time on television and Michael Bolton was the equivalent of Drake today. Approximately 20 other states have modified their laws since 2009 to account for teen sexting. Given the recent trend amongst states reforming their laws, it seems reasonable, if not logical, for North Carolina to modify their laws for the same purpose.
Prosecuting the minors for sexual exploitation would be inefficient and drain on the state’s resources, as well. Jeff Temple, a psychology expert at the University of Texas Medical Branch, has conducted research suggesting that 30% of teens these days “sext” each other. Is the state of North Carolina prepared to prosecute this many minors and subject them to the full extent of the exploitation statute? Given the rampant practice of “sexting” amongst minors, the state will have to contribute considerable time and resources to combat the “sexting” trend. In the face of this obstacle, it seems even more reasonable just to reform the laws to alleviate the strain that prosecuting these offenses would have on our legal system. What purpose does prosecuting these consensual cases of “sexting” serve in the grand scheme of other more criminal offenses?
While many involved in this case seemed to realize the absurdity underlying it and reasonably worked something out with the teens so as to not cause permanent damage to their records, the next seventeen year-old may not have a reasonable District Attorney or public outcry to influence the outcome. Overall, North Carolina should reform the law so that minors consensually sending sexually explicit photos are not criminalized under the sexual exploitation statute intended for the real threats to the community. Legislative reform would alleviate the burdens placed on the legal system in prosecuting these offenses and will protect minors from the possibility of an excessive punishment never intended for them.