OPINION: SEXTING IS NOT CHILD PORN

You see a lot on my side of the desk.

There’s the client caught with a hundred pictures of kids-all who look to be about 10 or 12 years old-after the feds went snooping on his hard drive. That means criminal charges for possession of child pornography.

There’s the client who used file-sharing sites like KaZaA, eDonkey (eD2k), or Gnutella to find and download images of “barely legal” teens-some not so legal, in fact-and now faces a distribution charge.

Then there’s the worst of the worst, in the eyes of the criminal justice system. This client produces the stuff, takes the pictures and shoots the video, and offers the “product” for sale to those willing to pay top dollar for it. This means a charge for production.

These offenses can land you months or years in prison, depending on the circumstances, and lifetime registration as a sex offender. On my side of the desk, as a criminal defense lawyer, you see the dark side of human sexuality.

Child pornography crimes are often charged as federal offenses, under federal law, by federal authorities of the type with three-letter acronyms-like FBI-in their names. The types of offenses include possession, production, transport, distribution, receipt, and trafficking.

The age of the child depicted in an image or video matters in terms of the severity of the sentence imposed. An offense involving a child under 12, for instance, is generally punished more harshly than child porn involving underage teens.

But it’s here, where we start talking about teens, that the law starts to go awry.

Sending and Receiving Pictures of a Minor On A Smartphone

Pornography is big business. By some accounts, porn takes up 30 percent of Internet bandwidth, and gets more clicks a month than Netflix, Amazon and Twitter combined. And the U.S. Sentencing Commission, in its History of the Child Pornography Guidelines, says that Congress has found that child porn-to say nothing of mainstream adult porn-is a multi-million dollar industry.

In its effort to curb child porn, Congress is constantly creating new offenses, making penalties worse, and issuing directives to the U.S. Sentencing Commission about child porn.

But today’s so-called digital native, born during the time of Facebook, smartphones and iPads, doesn’t necessarily realize that sexting-sending and receiving sexual pictures or videos to a boyfriend or girlfriend by text or email-may be a criminal offense. While the teens of earlier generations fooled around in the bed of a pickup or in the backseat of a car in an empty parking lot, today’s teens fool around using the same devices they use to do their homework.

Is it fair to be charged with child porn because of something relatively innocent one teen did with another in an established relationship? The answer is no, but it happens-like one North Carolina teen whose pictures of his girlfriend were forwarded to 30 people-and the easiest way to vilify someone is to call him a child porn offender.

That’s not fair for today’s teens. Sexting, in the context of a relationship, is not child porn, and should not be punished that way.