From time to time I hear stories of the prosecution of teenagers for possession and distribution of child pornography as a result of sending or re-sending pictures through text messaging. Typically, these stories involve a young teenager who takes a naked “selfie” and then texts it to a friend. The friend then sends it to a lot of friends with the result that school officials hear of the distribution of the picture. The police get notified and arrests are made for possession and distribution of child pornography. So, are naked selfies child pornography? Can a person be arrested for texting these naked pictures?
1973 the United States has had one basic definition of obscenity
(which includes pornography):
disputes over selfies taken by children usually focus on the second
element of depiction in a patently offensive way of sexual conduct.
Naked selfies taken by teenagers are usually pictures of the teenager
alone. No other person is in the picture. While some selfies could
involve more than mere nudity, the vast majority of these pictures
are just nude pictures. In a recent case in Massachusetts, the Court
looked at this issue in the context of a convicted sex offender who
possessed a number of pictures of naked children while he was in
prison. Commonwealth v. Rex, No.
SJC–11480 (July 9, 2014). The court found that merely naked
pictures cannot be considered pornography. There must be more. Even
in the context of a convicted sex offender in prison, nude pictures
were not considered obscene. The Court describe six factors to
consider to determine if the pictures could be considered
whether the focal point of the visual depiction is on the child's
genitalia or pubic area;
whether the setting of the visual depiction is sexually suggestive,
i.e., in a place or pose generally associated with sexual activity;
whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child;
whether the child is fully or partially clothed, or nude;
whether the visual depiction suggests sexual coyness or a willingness
to engage in sexual activity; [and]
whether the visual depiction is intended or designed to elicit a
sexual response in the viewer.” The Court took these factors from
a prior case: United States v. Dost, 636 F.Supp. 828, 832 (S.D
.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239,
1244 (9th Cir.), cert. denied, 484 U.S. 856 (1987).
this article will not encourage anybody to take naked pictures of
themselves and to text them to others. It is a bad idea and
hopefully recent stories of the leaking of naked pictures of
celebrities from hackers should be a deterent to people. However, if
someone is approached by the police for sending or receiving naked
pictures, then they should consult an attorney who can advice them on
the laws concerning pornography. It is better to have an attorney
intervene and maybe stop a prosecution than having a prosecution
started, published in newspapers, and then dismissed. Consulting an
attorney quickly may prevent injury through stories in local media.