Child Pornography and Selfies: What You Need to Know
Although it was used prior, the term "selfie" quickly became part of the mainstream lexicon in 2013 when its use became so common that it was named the "Oxford Dictionaries Word of the Year." For the uninitiated, a selfie is a self-portrait photograph that's often taken with a camera phone, webcam, or digital camera. The explosion of social media networks and the rise of the camera phone have created endless opportunities for anyone to share their self-portraits with the world.
This emerging technology is a natural fit for most teens and, generally, the worst offense they might commit is sharing too frequently. There is, however, also a potential for criminal liability under child pornography laws when selfies involve underage nudity or sexual situations.
Definition of Child Pornography
Since technology moves much faster than legislation, crimes committed via social media are often prosecuted by applying existing statutes. Federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor, and the United States Department of Justice may prosecute offenses occurring across state or international borders and almost any offense involving the Internet.
Federal charges need not be exclusive, however, and an individual may face criminal liability under both U.S. and state child pornography laws, which are largely similar to and sometimes more comprehensive than the federal statutes. Many states further define elements of the crime, such as what constitutes sexually explicit conduct or who is considered a minor. For example:
- Massachusetts extends its child pornography laws to include participating, with lascivious intent, in the depiction of a nude minor in any visual material.
- In South Carolina, the judge or jury may infer that the participants in alleged child pornography are minors based on the material's title or text.
- Utah's definition of "sexually explicit content" includes actual or simulated "explicit representation of defecation or urination functions."
Application of Child Pornography Laws to Selfies
If an adult takes a sexually explicit picture of a minor and shares it via social media or text message, that adult will likely have run afoul of some child pornography laws. But what about a minor who takes selfies and sends them discreetly to another teen? What if the receiver then forwards the photos to others? Have they violated any laws? In many states, the answer is yes.
Though their laws were created to protect minors from exploitation caused by others, states are prosecuting minors under child pornography statutes for sending nude or otherwise lurid self-portraits, even when the minors sent the selfies without coercion. The common quirk in the laws is that there is no exception for taking or distributing sexually explicit pictures of oneself. Thus, a high school student sending a racy seflie to a boyfriend or girlfriend could subject both themselves and the receiver to prosecution for child pornography. If the picture makes its way around other social circles through online or direct sharing, anyone who received or distributed the photo could also find themselves open to charges.
Direction of Future Laws
The overall trend on both the federal and state levels is toward broader definitions of child pornography with increased prosecutions and harsher penalties for those connected to it. One of the gray areas that's getting greater attention in the age of social media is what constitutes "possession" of child pornography. Most social media sites can now store large caches of images indefinitely on the Internet, lessening the need for viewers to download files to their computers. Other services, such as Snapchat, can be used to distribute selfies that auto-delete themselves after a few seconds (though the receiver may create a screen capture before the image disappears).
Since merely viewing child pornography is illegal in many states, browsing a website or knowingly receiving illegal images would be criminal activity in those jurisdictions. Other states' child pornography laws, however, have "possession" requirements that are somewhat archaic in the digital age. The shortcomings of these statutes were exemplified by a pair of high court decisions from Oregon and New York:
- A 2011 decision by the Oregon Supreme Court reversed the conviction of a man charged under the state's Encouraging Child Sexual Abuse statute since the child pornography in question was only accessed on the Internet and he never 'possessed' or 'controlled' the images, as required by the law.
- Similarly, in 2012, the New York Court of Appeals held that viewing child pornography online does constitute the "knowing procurement or possession of those files" and reversed some charges against the defendant.
Both of these states and others have since taken steps to close such loopholes and expand the reach of their child pornography laws so as to include developing and future technologies, but this is an area of law that is rapidly evolving to meet the times. For teens sending or exchanging risqué pictures, their concern can no longer be limited to whether it may bring embarrassment or even parental and academic discipline. Instead, they need to also consider whether that sexually explicit selfie can get them prosecuted under child pornography laws.