Most people think of “distributing” child pornography as a large-scale operation that allows viewers access child pornographic images and videos either by hosting files on a website or through using a file-sharing service.
In reality, though, it takes a lot less than that to be charged with the crime – and face incredibly severe consequences.
Take the case of Jayce Craft. The 29-year-old Texas man was recently sentenced to 20 years in federal prison for child pornography possession and distribution. That’s a serious sentence.
So what did he actually do? According to court records, Mr. Craft had a “substantial” amount of child pornography in a cloud storage account, and he sent and received files via email.
Is that worth 20 years of a man’s life? Maybe. Maybe not.
Here’s another situation.
Let’s say that you’re the parent of a high school senior, and they’re sexually active with a sophomore. Due to the way their birthdays work out, your child is 18 and the sophomore is 15. s with many teenager today, they engage in sexting.
If, for whatever reason, your 18-year-olod sends “pornographic” pictures of the sophomore to others, he (or she) can be charged with distributing child pornography. If it’s a federal offense that comes with a mandatory minimum sentence of five years.
In fact, there’s a five year mandatory minimum sentence attached to many kinds of federal child pornography offenses:
Receipt
Distribution
Possession with intent to distribute or sell
Transportation
Production of child pornography
By itself, that list may not seem all that restrictive. To understand how crazy the laws can become, you have to break down those terms and how they can be applied.
Distribution is particularly interesting though because of how so many in the younger generation use their phones.
What It Means to “Distribute” Child Pornography under Current Laws
Here’s the actual language from the federal statute, 18 U.S. Code § 2252:
“Any person who…knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if…the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and…such visual depiction is of such conduct.”
In other words, anyone who sends sexually explicit images of minors using any method can be charged and will face the five-year mandatory minimum. This includes both getting pictures and forwarding them on to others and – for minors – taking pictures or videos of yourself and sending them out. Technically, the law doesn’t specifically deal with sexting, but it also does not exclude it.
Thankfully, the Federal Juvenile Delinquency Act means that minors most likely would not be prosecuted for sexting at the federal level. However, they could still face state charges.
Does Texas have charges for sexting?
Yes, it does. Sexting is punished under Texas Penal Code, Sec. 43.261.
Here’s the language for that:
“A person who is a minor commits an offense if the person intentionally or knowingly…by electronic means promotes to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.”
What’s the legal definition of “promote”?
To “procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.”
Again, anyone who sends sexually explicit images of minors using any method can be charged.
Consequences and Defenses
Technically, minors in Texas who face criminal charges for sexting will not be up against distribution of child pornography. Instead, they would be charged with a Class C misdemeanor, which entails only a $500 fine.
However, this charge can be bumped up to a Class B misdemeanor if the visual material was sent “to harass, annoy, alarm, abuse, torment, embarrass, or offend another,” or if they have previously been convicted of another similar offense. That charge comes with up to 180 days in jail and a fine of up to $2,000.
Moreover, if they have previously been convicted of distributing visual material to harass, et al, or if they have previously been convicted for a similar offense twice before, the charge becomes a Class A misdemeanor with up to a year in jail and fines up to $4,000.
As for adults, they will face charges of distributing sexual images or distributing child pornography. These are typically felony offenses and come with penalties including up to 20 years in prison and a fine up to $10,000.
Both adults and juveniles could potentially be required to register as a sex offender as well, just like they would for other types of sex crimes.
Luckily, minors who sext within a relationship, who are two years apart or less and ho only send images of each other to each other, can use that as a defense. This also applies if an 18-year-old is in a relationship with someone who is 16 or 17.
However, this would not work in the situation described above if the 18-year-old is dating a 15-year-old. Nor would it apply if a 19-year-old is dating a 17-year-old – he or she would not only lose out on that defense but face charges as an adult.
As you can see, the laws governing child pornography distribution are far more complex than they may appear at first. Add the fact that last year the FBI essentially distributed child pornography in order to catch people who were looking at it.
The bottom line is that if you are charged with distributing child pornography – either at the state or federal level – you need a lawyer who understands the issue and the laws governing it.