Sexting continues to be a phenomenon of new technology, but a dangerous one that parents owe it to their children to understand, even at the sacrifice of some of the child’s privacy. Indiana has implemented an especially robust legal backdrop specifically geared towards stopping the negative effects of sexting. Here we will cover the basics of the laws that protect those most vulnerable among us while punishing predators that would take advantage of children.
Describing the Problem
The definition of sexting is not elocuted specifically in Indiana law, but is rather mostly included in the language of IC 35-42-4-4, the section of Indiana law that has to do with child exploitation and possession of child pornography. In this statute, many behaviors are limited, most importantly the production and distribution of images of minors in sexually provocative positions.
The state of Indiana (and many others) have been cracking down on underage sexting because the practice has been linked tochild pornography and other serious sex crimes involving minors. In some cases, the defenses that the law provides in subsection (f) have been whittled away in actual practice. The end result is that no one is truly safe from prosecution who holds and distributes a sexually provocative picture of an underage person on a personal communications device. This is true even if that picture is sent to one person only, the intended recipient.
However, it is highly unlikely that only one person will receive the message. Although only 17% of sexters share the messages they receive with one person, that percentage increases the farther away from the original recipients that you go. Sexts go “viral” in a sense, and the more provocative, the more likely the viral action is to occur.
Perhaps the most revealing type of sexting case occurs from minor to minor. Regardless of whether both parties are teens, if they are sexting to each other, they can both be charged with child pornography for sending pictures of themselves. In 2011, Indiana investigated 161 of these cases. One of the most serious of these cases involved a 15 year old girl who had been allegedly coerced to send nude pictures of herself through the Internet. Even though the girl had supposedly had sex with a 27 year old man, she was still charged with distributing child pornography.
The highest percentage of underage girls who send sexually provocative pictures (around 40%) do it “as a joke.” 34% do it in order “to feel sexy.” 70% of teenagers who send texts say that they are in relationships, but considering the statistic above about how often sexts are shared, relationships are no protection against publication.
Indiana University has conducted research showing that up to 20% of sexters send pictures because of mental or physical threats from their partners. The study found that coercion into these actions may actually cause a higher level of trauma than coercion into the actual physical act of intercourse.
40% of teens have sent or helped to publish at least one sexually explicit image in their lifetime.
Minor to Minor Sexting Penalties
In the state of Indiana, minor to minor sexting penalties are somewhat less severe than in cases involving an adult. Minor to minor is defined very specifically in Indiana law: Both parties must be under the age of 16, and neither party may be any more than 4 years of age from the other.
In most cases, a minor who is caught in possession of sexts has less chance of being charged with a crime, although this is up to the discretion of the judge. In general, penalties are less harsh for minor to minor sexting, and if the child is not deemed legally “incorrigible,” he or she will usually be released into the care of a guardian for disciplinary action. Guardians may also be charged under a number of statutes if a court finds that the adult in any way helped to cause the incorrigible behavior.
Under 18 U.S.C. § 5032 in federal law, the federal government puts the onus of prosecution of minors with respect to sexting on the state whenever possible.
Indiana Sexting Penalties
Possessing sexual images of a child aged less than 16 is considered a Class D felony in Indiana. This felony class carries with it a minimum six month jail sentence, with penalties ranging up to 3 years in prison. Those found guilty may also be required to pay up to a $10,000 fine, or both. Additional charges may be considered if those in possession of these images attempts to disseminate them to others, and subsequent offenses are punished on an increasing scale of intensity.
The production or the distribution of sexts with a person under the age of 18 is a Class C felony in the state. Penalties include a prison sentence of between 2 and 8 years, a maximum $10,000 fine, or both.
Federal Sexting Penalties
The PROTECT Act of 2003 (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) formalizes sexting as a federal crime in some cases. The production, possession or intent to distribute are all separate crimes under the PROTECT Act, including possession without intent to distribute.
Under 18 U.S.C. § 2251, parents can be held legally responsible for forcing a child to take part in the production of sexts.
Under 18 U.S.C. §§ 2252 and 2252A, computers may not be used to produce or distribute sexts in any way.
State and federal penalties for child pornography are separate structures, and may be applied to a case simultaneously depending on the offenses committed. Here is a shortlist of Indiana and US penalties for various charges concerning child pornography.
Articles 42 and 49 are the two portions of Indiana Code Title 35 that apply specifically to the punishments levied by the state for crimes involving child pornography.
35-42-3.5-1 – Sexual trafficking of a minor: Level 2 felony.
35-42-4-3 – Child molestation with a child under 14 years old: A Level 3 felony if criminal is under age 21; a Level 1 felony if criminal is over 21. Level 1 felony also applies if weapons, drugs or serious injury are involved.
35-42-4-4 – Child exploitation by creating child pornography: A Level 5 felony. Possession of child pornography is a Level 6 felony.
35-42-4-5 – Sexual conduct in presence of a minor when criminal is 18 or older: Level 5 felony. If child is younger than 14, this is a Level 4 felony. If force is used, this is a Level 3 felony.
35-49-3-1 – Sale, distribution or exhibition of child pornography – A Level 6 felony.
35-49-3-2 – Obscene performance: A Level 6 felony.
35-49-3-3 – Dissemination of matter or conducting performance harmful to minors – A Level 6 felony.
The federal laws concerning child pornography include 18 U.S.C. § 2251, 18 U.S.C. § 2251A, 18 U.S.C. § 2252, 18 U.S.C. § 2252A, 18 U.S.C. § 2256 and 18 U.S.C. § 2260.
Production of, transportation, possession with intent to distribute or sell, receipt of or distribution of child pornography carries a minimum sentence of 5 years.
Possession of child pornography does not carry a federally mandated minimum sentence, which is why federal lawmakers prefer that child pornography cases be tried at the state level.