By: Diana C. Chestnut, Esq., M.P.P.
The law has historically been slow to catch up with technology. Addressing teenage use of technology to take and/or send nude photos is no exception. Teens who were caught taking or sending nude photos of themselves or others have been charged with the crimes of Distribution, Transmission, or Possession of Child Pornography. These are felony offenses which carry stiff penalties, including possible registration as a sex offender.
In 2011 the Florida Legislature responded to penalties many people considered unfair and too harsh by enacting Florida Statute § 847.0141, the sexting statute. This statute seeks to strike a balance between teaching teens that sending nude photos is unacceptable and recognizing that the “perpetrators” are only children. Under § 847.0141, if a teenager sends a nude photo, regardless of whether it is of him/her self or someone else, the teen has committed a noncriminal offense, punishable by community service and fines. Sending nude photos a second time can lead to being charged with a first-degree misdemeanor. A third violation of the statute can lead to being charged with a third-degree felony.
This first-time penalty is an enormous departure from the past, where the child was immediately charged with a serious felony sex offense. The statute uniquely prevents children from being classified as a sex offender and gives children an “out” if they tell their parent that they received an unsolicited nude photo. The escalation in the penalties gives parents a chance to intervene to discuss the consequences of sending nude photos with their children.
Unanticipated consequences of the sexting statute have emerged. Some recent legal publications have encouraged women to seek an injunction against sexual violence under Florida Statute § 784.046 when their cases fail to bring criminal charges after their nude photos are distributed by the recipient. An injunction, also known as a restraining order, is a court order preventing a person from doing something, like going near another person or place. The injunction statute is authorized to issue injunctions for offenses like sexual battery, sexual violence, domestic battery, and stalking.
Sexting is not included. However; parents of minors who engage in sexting are following the trend proposed by some publications by seeking injunctions against sexual violence when their child’s sexting photos surface. Issuing an injunction based on § 784.046 due to sexting is not within the types of acts the injunction statute is designed to protect from, thus issuance is improper under the law. Further, to get an injunction for sexual violence, the person seeking the injunction must report a crime to law enforcement. First offense sexting is not a crime, but since an investigation is required to get the injunction, a teen might be under the microscope for sexual charges when they aren’t warranted.
The policy of protecting any potential victim of sexual harassment or abuse encourages the decision by judges to issue injunctions against sexual violence, even when the accusations do not rise to the level required by the law. Usually, the parents seeking the injunction cannot meet the burden of proof to get a permanent injunction, but since the initial hearing is ex parte, meaning the accused is not there to defend him or herself, the judge can be convinced of the need for protection completely unobjected. An injunction against a teenager can have major consequences such as switching schools, quitting extra-curricular activities, loss of friends, loss of social media, and of course the legal stigma of having an injunction against sexual violence placed upon the teen.
The first step to take when parents discover their child has engaged in sexting is to talk with their child. This is the most impactful and beneficial intervention, which should be utilized long before law enforcement is involved. Parents must recognize that sexting is often a two-way street, where neither party is “innocent.” If law enforcement does become involved, the child should be facing penalties only under the sexting statute, not other sex offense laws. Parents should seek legal assistance if their child has been accused of engaging in sexting or other illegal behavior.