The act of “sexting” is a somewhat new phenomenon that has developed with the widespread usage of connected handheld devices. New Jersey and more than 20 other states have enacted some form of legislation that addresses this concern. There have been dozens of incidents across the state that has been publicized. Many involve teenagers or pre-teens that exchange photos that depict nudity or other sexually explicit images or videos. State law now prohibits minors from possessing, transmitting, sharing, or viewing explicit material.
Recent Incident in New Jersey
Members of law enforcement conducted an investigation where a group of teenagers was engaged in “sexting” activity. A total of six teenagers from Little Falls, Totowa, West Orange, and Woodland Park were all involved in disseminating explicit material. Authorities say that a 16-year-old boy from West Orange initiated the activity by sending explicit photos of his ex-girlfriend to a 16-year–old girl in Little Falls. Those two minors were both taken into police custody on allegations of delinquency.
The police continued to monitor a massive chain of activity of nearly 40,000 subsequent messages. The authorities were able to detect the IP addresses of the devices involved and shortly after determined a 15-year-old boy had gained access to the private messaging account of one of the teens. He then began distributing those photos as well as a video of a nude 15-year-old girl from Totowa. Sergeant James Briggs of the Little Falls Police Department explained that charges were filed that included second-degree child pornography and fourth-degree possession of pornographic material depicting minors.
Sexting Legislation in New Jersey (18A:35-4.32)
The state enacted legislation that specifically relates to sexting recently. The provisions explain that acts of sexting have become a significant concern among families, school administrators, and agencies of law enforcement. Children seem unaware that explicit images of minors generally equates to child pornography. A diversionary program was implemented for minors with counseling and education that serves as an alternative to charges of delinquency.
The legislature goes further to explain that this type of activity has more than only legal consequences. The actions could have an adverse impact on relationships, educational opportunities, and potential employment. The provisions state that other negative consequences include “embarrassment, ridicule, cyber-bullying, and lasting mental and emotional trauma.”
Endangering Welfare of Children (2C:24-4)
A related crime addressed in New Jersey law is child endangerment. This may be committed in several ways and also applies to what is often referred to as “child pornography” as follows:
- If a parent, guardian, or another person who is responsible for a child exposes the minor to sexual activity that may “impair or debauch” their morals, they may be charged with a second-degree offense. This becomes a third-degree offense if the offender is not a parent or guardian of the child.
- Allowing a child to engage in sexual activity that will be photographed, recorded, or otherwise documented is a second-degree offense. This is enhanced to a first-degree offense if the perpetrator is a parent, guardian, or another individual who is responsible for the child.
- Someone who takes photos or otherwise documents a child engaging in sexual activity may be charged with a second-degree offense.
- Someone who shares or otherwise disseminates any images or recording of a child engaging in sexual activity may be charged with a second-degree offense.
- Having possession of or viewing photos or videos of a child engaging in sexual activity may be charged as a third-degree offense.
Federal Child Pornography Law (18 U.S. Code § 2256)
Federal laws specifically define child pornography as when someone photographs, films, or otherwise document a child engaging in sexual activity. The offense may also be committed by modifying or otherwise altering photos or videos to appear as though a minor is engaging in acts of a sexual nature. The crime may be committed without the child actively engaging in sexual activity if the minor is depicted without clothing in a “sexually suggestive” manner.
These laws will supersede any state laws that allow a minor to consent to participation in sexual acts. Federal law will allow first-time offenders to be punished by a prison sentence of between 15 and 30 years. Anyone who possesses or moves such pornographic material into another state may face a punishment of between five and 20 years of incarceration. Courts also have some discretion to increase penalties when the unlawful material demonstrates violence or abuse.
Legislative Measures in the Other States
New Jersey is not alone in addressing this issue. According to the Cyber Bullying Research Center, 20 states have some laws that relate to explicit material involving minors being sent and received. Some states treat sexting as a strict liability offense, meaning that it is not necessary to prove actual intent. Several states including Florida and Georgia classify the crime as a felony offense. Other states including Pennsylvania and Nevada have relatively lax sexting laws.
Acts of Vengeance
There have been instances where couples have gone through a stormy break-up and explicit photos or recordings may be used for revenge. Another possibility in this scenario is “sextortion.” This occurs when someone leverages the threat of distributing explicit images. Someone may potentially be forced to pay money or perform some other actions in these cases.
Relationship to Megan's Law
New Jersey requires those convicted of certain offenses to register as a sex offender for several reasons including public safety. Someone could potentially receive an explicit text message that they are unaware contains child pornography. The act of forwarding the message to someone could lead to charges based on the distribution of child pornography. If convicted, this individual could be classified as a sex offender according to Megan's Law that is managed by the New Jersey State Police.
Experienced Defense Lawyer for Sexually-Based Offenses
Joseph D. Lento understands the devastating consequences that can result from being convicted of a serious sex offense. Those facing such allegations in New Jersey should seek legal counsel that practices within the realm of criminal defense on a daily basis. We encourage you to contact the office today at (888) 535-3686 for a case evaluation.