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Information about issues related to criminal law in Michigan. If you need legal assistance, please contact a lawyer.

 

What Every Parent Should Know
About “Sexting”

Being a parent isn’t easy. This is especially true when children stop being “children” and start being “teenagers”. This part of life often brings dangers of legal entanglements as raging hormones cause emotions to overpower logic—leading to fights, teen pregnancy, or impulsive behavior—and new-found independence leads to experimentation with drugs and alcohol. Digital technology has brought a whole new series of risks to the teen years, and most parents lack the knowledge necessary to manage these risks effectively. When it comes to digital technology, the usual approaches can create terrible results. This is especially true when it comes to the phenomenon of “sexting”.

Outdated Laws Lead to Draconion Results

What qualifies as “child pornography” in Michigan?

Michigan’s child pornography (technically, “Child Sexually Abusive Materials”) laws are scary and somewhat draconian. This has led people to be terrified to take or share even innocent photographs for fear of being charged with child pornography-related crimes. It is, therefore, important to know what does and does not qualify as “child pornography”.

The definition for the term is found under MCL 750.145c(1)(o) as “any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.”

Although it is long, the definition can actually be broken down into several components.

First, the material has to be an actual image (whether physical or electronic) or recording (sound and/or video). Written descriptions do not count; the steamiest sex scene involving two ten-year-olds would not count as child sexually abusive material if it was merely described in words and not shown in images or recordings.

Second, the material has to include an actual child. The statute defines as “child” as “a person who is less than 18 years of age” (except for people under that age who are “emancipated by operation of law” and are, therefore, not legally considered to be minors). Although the statutory language is much broader—and includes language that criminalizes material that “appears” to show a child, even if no actual child is involved—this provision is unconstitutional. Only depictions of actual children under the age of 18 count. Therefore, Blue Lagoon—in which it appears that a 14-year-old Brooke Shields is shown nude—is not “child pornography” because body doubles over 18 years of age were actually used for nude scenes.

Third, the activity displayed has to be, at a minimum, “erotic nudity”. It is a common fear among many people that traditional pictures of a naked baby in a bathtub can lead to criminal charges for “possession of child pornography”. This is simply not true; the statute itself defines “erotic nudity” as “lascivious exhibition of the genital, pubic, or rectal area of any person” and goes on to define “lascvisious” as “wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.” “[I]nnocent child nudity” does not run afoul of the law. So, pictures of a baby in a bathtub are not “child pornography”.

Finally, there has to be some actual knowledge or “reason to know” that the depiction involves a child.  A person who possesses an erotic photograph of a person who appears to be 30 years old to a reasonable person is probably not going to run afoul of the law if it turns out the person depicted is actually 15. This changes, of course, if the possessor of the picture actually knew the person in the photograph was under 18.

The simple fact is this: laws are not keeping up with technology. Teenagers naturally experiment with their sexuality, and in the era of camera phones, easy sharing of digital images, and social media, nude selfies are predictably part of that experimentation. Unfortunately, what teenagers see as harmless flirting can turn into a life-altering event that destroys their futures. And, unfortunately, that is not an exaggeration.

The problem is that the laws currently on the books are written to address trafficking of photos taken of minors who are manipulated or coerced, and to punish the ongoing victimization of the minors in those images when they are distributed. As a result, they carry severe penalties that follow a person for life. These laws were written when taking photographs and video were more sophisticated: film had to be developed and printed and the photographs physically distributed in person or through the mail, and videotapes were bulky mechanical storage devices that took considerable time and effort to duplicate and distribute. None of these laws anticipated a time when someone could simply get naked, snap a few shots of himself/herself, and with the click of a button instantly send those photos to any number of people.

Nonetheless, these are the laws that apply, so a teenage girl taking a photograph of her own breasts would be subject to the same penalties as a dedicated child pornographer who was exploiting unwilling children for nefarious purposes. When applied to teenagers taking nude selfies and sharing them with romantic partners, the penalties imposed by these laws are overly harsh and often create victims instead of protecting them: in Michigan, a teenage girl who takes a photo of her own bare breasts can be charged with "Manufacturing Child Sexually Abusive Material" (CSAM) under MCL 750.145c((2), a felony carrying up to 20 years in prison and mandatory registration on the Michigan sex offender list. If she sends the picture to her boyfriend, she can be charged with an additional 7-year felony of "Distribution of CSAM" (MCL 750.145c((3)), and he can be charged with a four-year felony for "Possession of CSAM" (MCL 750.145c((4)) and be put on the sex offender list, as well. If he shows the picture to his buddy—even just showing him the photo on the screen—he can also be charged with "Distribution of CSAM". If he asks his girlfriend to send him these kinds of pictures, he can be charged with “Inducing a Child to Engage in a Child Sexually Abusive Activity” (MCL 750.145c((2)), another 20-year felony. They will all also likely be charged with several counts of “Using a Computer to Commit a Crime” (MCL 750.145d), another felony. This is all true even if everyone involved is a teen (or younger). Even minors adjudicated guilty of these charges in the juvenile courts are put on the sex offender list.

The stakes are, therefore, extremely high. Parents can not afford to “wing it” when it comes to dealing with these circumstances. Fortunately, they can at least be prepared.

Prevention is the Best Cure

The best way to avoid long-term legal consequences of “sexting” is to avoid the problem in the first place. It is absolutely essential that children understand that this is serious. Although it is counter-intuitive, even teenagers old enough to legally have sex cannot show their naked bodies on camera. It is imperative that teenagers understand that until they reach the magical age of 18, what they can do in person they can not do by internet or phone. They also need to understand the consequences. These charges are prosecuted aggressively and the will follow them around forever: many of the crimes involved can not be expunged, and many require registration as a sex offender . . . even when they are taking pictures of themselves. They need to know that they absolutely can not take photographs of their own genitals or buttocks, and girls can not take photographs of their own bare breasts. Although it should go without saying, this also applies to “flashing” on webcams or other video. A 16-year-old girl may be able to show her breasts to her boyfriend in person, but the moment she does so over Skype or Snapchat, she has committed at least two felonies. If her boyfriend asked her to do it, he can be charged with soliciting CSAM, which is also a serious felony.

Unfortunately, even if your children are aware of these restrictions, they can still be drawn into these cases due to the actions of others. Take, for example, the boy who receives a flirty topless photo from his 17-year-old girlfriend or the girl who receives an unsolicited photo of a 16-year-old’s penis (a so-called “dick pic”). In these circumstances, there can be significant legal consequences for the recipients of these photographs even though they did nothing on their own to break the law. For them, the solution is simple: delete the images or video immediately and do not show them to anyone else. Deletion of this material immediately indicates—from a legal perspective—that the material was unwanted, and provides a defense to charges of possession of CSAM. (This defense goes away, of course, if the recipient then says, “That was great! Send me more!” or words to that effect, since this constitutes “soliciting” the images.) Saving the images for even a short period constitutes “possession” for purposes of criminal charges, and simply showing the images to someone on the screen (“Look what Jane sent me!”) constitutes “distribution”.

Parents often worry that deleting these pictures in the manner would lead to charges of tampering with evidence. Those worries are understandable, but unfounded; legally speaking, the recipient of these images is required to destroy them.

Parents also need to bear in mind that as difficult as it is for adults to resist temptation, that difficulty is multiplied exponentially with teenagers. A teenage boy who receives a nude photo of his girlfriend will find it incredibly difficult to simply delete this masterpiece, and increasingly easy to save it in an encrypted form, safely tucked away inside of an app on his or her phone. Apps like Private Photo Vault and KeepSafe allow users to keep encrypted photos stored behind secure passwords. Some even include “decoy” passwords that allow a user to keep a gallery of “clean” photographs to hide the more scandalous images, while making it appear the user is cooperating. These apps are, at least, easy to identify; other apps (such as KYMS or Secret Calculator Pro) are camouflaged as software that does something else (and that actually functions as something else), but secretly contain an encrypted photo gallery that can be accessed through entering a specific PIN. Parents need to be aware of these apps; even though your teenager may fool you into thinking there are no contraband images, police are aware of these apps and will almost always be able to identify them. Their presence alone will confirm suspicions among police officers who already think someone has child pornography on their mobile device. Remember that your job as a parent is not to be a “friend”; it is to be a “parent”. That means monitoring how you child uses the internet and mobile devices. You may get grief over invading your progeny’s privacy, but that grief is much less than what you will feel at a felony sentencing.

A “Sexting” Investigation is Not a “Teachable Moment”

There are a number of ways in which a parent can find out that there may be a sexting issue, but regardless of how it starts, parents need to keep in mind that this is not a “teachable moment”; your child didn’t pocket a piece of candy from the local party store, with the proper “teachable moment” response being to make the child confess and get a stern lecture from the shop owner. Your child is potentially being accused of a crime that will have disproportionate and life-long consequences, and your job as a parent is to protect that child.

Finding Images Yourself

If you discover nude photographs of a minor on your child’s phone, delete them. Do not hold onto them so that you can confront your child with them later. Do not leave them there until you can show your spouse. Absolutely do not take them to the school to show the principal, or to the police to show them what you found. Delete them immediately. At this point, you actually run the risk of possessing CSAM and (if you show it to someone) distributing CSAM, and the advice given earlier about what your child should do if someone sends nude photos applies to you. At this point, you absolutely must have a conversation with your child about the dangers of these materials. Your child also needs to know that there should be no discussions about the photos with anyone. If a friend asks, “Did Kelly send you nudes?” and your child responds “Yes”, this is a confession admissible in court. “No discussion” means just that: no discussion.

If you do not feel that you can trust your child with these devices, take them away. (They can still have a mobile telephone to make and receive calls. Believe it or not, there are still flip-phones that can not easily access the internet, and a nail to the camera lens will prevent your child from snapping nude selfies to send.) Again: the grief you get over this pales in comparison to the grief you will feel if your child is charged with a felony.

There are other issues that you may also want to address at this point. For instance, if you know the identity of the individual shown in the pictures, you may want to contact that individual’s parents to alert them. This creates a minefield of legal issues, however. Take the following scenario:

    Arnold is the father of 15-year-old Brian. In going through Brian’s phone, Arnold discovers topless photographs that Brian’s girlfriend
    Candace (also 15 years old) texted him. Arnold can see that Brian responded to the first photo with, “That’s really hot! Can I see
    more?” and Candace sent two more topless pictures.

    Arnold likes Candace. He is concerned about the implications for Candace and does not want her to get into trouble, so he calls
    Candace’s mother, Darlene. He tells Darlene that in going through Brian’s phone, he found nude photographs of Candace that she had
    texted.

What Arnold has unknowingly done is implicate his son in the following felonies: Possession of CSAM, Using a Computer to Commit a Crime, Inducing a Child to Engage in a Child Sexually Abusive Activity, and potentially Conspiracy to Distribute/Manufacture CSAM. Furthermore, he has identified himself as a witness against his own son should the police become involved. And, of course, if Arnold did not immediately delete the images, he has opened himself up to liability for Possession of CSAM.

Even if Arnold simply tells Darlene, “I know from a good source that Candace has been sending nude photographs of herself to someone”, he will still identify himself as a witness with knowledge, and as soon as someone takes a look at the messages on Candace’s phone, they will figure out that Brian had the photographs on his phone. If the police get involved, they will absolutely come knocking on his door. Arnold will be in the same position of being a witness against his own son.

One potential solution is for Arnold to hire an attorney to contact Darlene. The attorney would be able to contact her without identifying his client (in fact, to do so under the circumstances would violate attorney-client privilege) and inform Darlene of Candace’s potential issues. This would allow the attorney—without making statements attributable to Arnold or Brian—to make sure that Darlene is aware of the liability her daughter could face and how she might approach it.  At that point, what happens next would depend on how Darlene approached the situation; as before, if anyone looks at Candace’s text message history, they will be able to see to whom she sent the photographs and how he responded. Darlene’s best bet would be to contact an attorney for advice (which would almost certainly be, “Immediately and completely wipe her phone and any cloud storage to make sure all of the photographs are gone, have a frank discussion with Candace, and talk to no one else about this.”).

The School Becomes Involved

Many of these cases arise because school staff see or learn about the photographs. Teenagers are not particularly known for their discretion, and it is not uncommon for someone who has received a nude photograph to forward it to other people. And, of course, teenage romances can end as bitterly as any other, and spurned lovers often seek revenge by forwarding embarrassing pictures to other people (so-called “revenge porn”). When this happens, teachers or school administrators are often the first adults to learn about it. This is an extremely dangerous situation; school staff usually do not believe that Constitutional limitations apply to them in these situations (most of these limitations do apply, especially at public schools); students do not view teachers as de facto law enforcement officers, nor do they understand that they have the right to refuse to answer questions or consent to searches; and school staff are legally required to contact the police and/or Child Protective Services in these situations.

It is not uncommon for teachers or principals to haul a student into the office, interrogate that student without any Miranda warnings, demand the student give them passwords for mobile devices, and conduct searches of the student’s person and property without consent. Most of this is usually done without a parent being notified. Regardless of what school staff tell you or your child, what is happening at this point is that the school staff are gathering evidence that will eventually be turned over to the police. This makes public school employees—government employees—agents of the police. They should be treated as such. This means that your child has the right to refuse to make a statement, the right to refuse a search of his/her person or property (with some limitations), and the absolute right to not give up mobile phone passwords. Your child also has the right to demand that you be contacted. Your child should absolutely do this, and should also assert his or her 5th and 6th Amendment rights: “I am not going to make any statement, and I refuse to say anything without my lawyer present.”

As a practical matter, this rarely happens because students simply do not know that they have these rights. Even when they assert their rights, school officials will usually continue questioning them. Thus, by the time a parent learns what is going on, a great deal of damage has already been done. At this point, a parent’s proper response is to immediately contact an attorney to intervene. The parent should also assert the child’s 5th and 6th Amendment rights for him, and refuse to allow the child to be subjected to any more questions or searches, and refuse to make any additional statements. This will undoubtedly be met with hostility and even threats of suspensions or expulsion, but suspension or expulsion proceedings are fairly likely at this stage, anyway. Regardless, a suspension or expulsion is a much better problem to have than a felony charge.

Sometimes, the school will handle things in a much more reasonable manner. Instead of hauling a student in and interrogating him or her, the school will notify the parents of the issue. Typically, they will invite the parents and the student in to talk with the principal.

Unfortunately, many parents are unaware of the dangers at this point and decide that the best thing to do is to have the child “come clean”. The parent may believe that this is a “teachable moment” that will provide a valuable life lesson, or that it’s really just “stuff kids do” and that once everyone realizes that the picture was sent voluntarily, the school will let everyone off with a warning. Neither of these things are true; because schools are mandatory reporters of child abuse, they are required to call the police and/or Child Protective Services in cases of sexting. Every statement made by everyone involved will be handed over to the police for use in prosecuting every child involved. A parent who compels a child to confess is not providing a “life lesson”; instead, the parent is is compelling the child to confess to crimes and be branded for life as a felon and a sex offender.

The bottom line is this: the moment you learn that the school thinks your child was in any way involved in any kind of issue involving photographs of unclothed minors, you need to instruct your child to assert his or her Constitutional rights and to refuse to make a statement or consent to a search, and you need to contact an attorney immediately.

When the Police Get Involved

The police may get involved in these cases in any number of ways. The school may call the police when a sexting issue arises, or parents may go directly to the police to complain that someone has been sending nude images of (or to) their child. Either way, the involvement of the police raises the stakes significantly.
The first thing most officers do is contact either the child or the child’s parents to “set up a meeting”. This meeting is really an “interrogation”, and neither you nor you child have any obligation to attend. In fact, you should not attend. You should—very politely and respectfully—let the officer know that you are asserting your and your child’s 5th and 6th Amendment rights and neither of you will be making any kind of a statement without an attorney present.

In other cases, the police will simply show up at the school or at your house, demanding to speak with your child and/or go through his/her computers and mobile devices. The same advice applies: do not consent to any search, do not make a statement, do not provide passwords, and assert your (and your child’s) Constitutional rights. 

In either case, you will need to contact an attorney right away. You are now swimming in shark-infested waters, and a good attorney is the only effective form of shark repellent you will have.

Sometimes, the police will obtain a search warrant that allows them to search your home and seize electronic devices. You have the right to get a copy of the warrant, and you should demand that you be provided with one. You should also contact your attorney. Be aware that even when the police have a valid search warrant, neither you nor your child can be compelled to provide them with passwords to access the devices or their contents. (If the device is encrypted with biometric security—fingerprint or retinal scanners, for instance—the police may be able to compel you to open it using those features, but they can not force you to provide a password.)

Police will also seize devices and hold them hostage, claiming that they still need them for their investigation, but offer to return them if you come in and make a statement and/or provide the password. Do not fall for these ploys; it will be cheaper to buy a new device than to deal with the repercussions of providing evidence that could result in your child being charged with a felony.

Your Child’s Future is at Risk; Act Accordingly

At first glance, involving an attorney and asserting your Constitutional rights over what seems to be “kids being kids” sounds like overkill. In reality, it should be; Michigan’s laws are outdated and obsolete in this regard, and they need to be changed. Given the current state of the law in Michigan, however, these precautions are absolutely necessary. The consequences of these cases are serious enough, and charges are brought frequently enough, that there is almost no such thing as an over-reaction when a child is potentially involved in a sexting situation.

Make sure your children know to avoid being involved in sexting at all costs. Make sure they really understand the potential consequences. And make sure that they understand what to do when someone sends them nude photos (delete the photos immediately, do not ask for more, and do not discuss them with anyone), or if school officials or police start questioning them (assert their rights, refuse to make a statement, do not consent to a search, ask for their parents immediately).

If your child has become involved in one of these cases, it is absolutely essential that you contact an attorney immediately. Do not have your child talk to police or school officials; "owning up" in this way is less a "life lesson" than a one-way ticket to a ruined future. Assert your rights, assert your child’s rights, and get professional help.

 

 

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