The Youth, Sexting, and Unfair Criminal Sanctions for Minors

February 5, 2023 Don Pumphrey, Jr. Criminal Defense, Sex Crimes, Social Media Social Share

When a person is convicted of a sex crime against a minor, they are often thought of as a “predator” or even a “pedophile.” In the state of Florida, there are harsh consequences against individuals who have been accused of sexual activity with a person under the age of 18. However, what happens if the alleged offender is a minor themselves?

Unfortunately, there are tons of teenagers who end up with criminal convictions and even registered sex offenders after being accused of a sex crime in Florida. While these types of criminal offenses are illegal for a reason, it should be important to distinguish between a teenager who sends a “sext” to another minor in comparison to a grown adult who has distributed child pornography. Yet, the penalties for both allegations could potentially result in each person being marked as a sexual offender for life.

This article will provide information on juveniles and sex and the issue of incessant prosecution of minors, development factors in the adolescent brain, as well as the relevant charges for sexting in Florida.

Stats on Minors and Sex

Those who commit sex crimes against minors are often called derogatory terms such as “pedophiles” or “predators.” But what about minors who commit these offenses? Early beliefs about juvenile sex offenders were based on the knowledge that we had about adult child predators.

However, this logic has been questioned due to clinical typologies and models which emphasize that the logic has obscured the important differences between juvenile and adult sex offenders. Such differences can include motivational, behavioral, or prognostic differences.

For instance, a juvenile accused of a sex crime can come from various family and social backgrounds, often being the result of a burden of adversity. Their family background can include exposure to violence, neglect, or even sexual abuse. As far as motivation, some juvenile sex offenders may have just been motivated by sexual curiosity. Whereas an adult sexual offender has a more developed brain and therefore cannot use sexual curiosity as a defense. While some illegal behavior by juveniles can be compulsive, it may pose more often as an impulsive decision or lack of better judgment.

The following is a list of key findings from a 2009 bulletin by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) regarding juveniles who commit sex offenses against minors:

• Juveniles account for over one-third (35.6%) of those known to police to have committed sex offenses against minors;
• Juveniles who have committed sex offenses against other minors are more likely than adult sex offenders to offend in groups or at school;
• The data showed that teens who commit sexual offenses against other children are usually between 12 and 14 years old;
• One out of eight juvenile offenders are younger than 12;
• Juvenile sex offenders make up one-quarter (25.8%) of all sex offenders and more than one-third of sex offenders against minor victims;
• Juvenile females make up 7% of sexual offenders; and
• Jurisdiction varies enormously in the concentration of reported juvenile sex offenders in comparison to adult sex offenders.

The CDC has reported that nearly 50% of high school teenagers have had sexual intercourse. It is estimated that by the 9^th grade, more than 30% of girls and nearly 40% of boys have had sex. In more conservative states such as Mississippi and South Carolina, pre-teen boys report the highest rates of pre-teen sex (19.1% and 17.1% for each state).

In a series of articles titled, “Too Young for Sex but Old Enough for the Sex Offender Registry,” Michele Goodwin questions whether teens should be prosecuted for committing alleged sex crimes when they have had consensual sex with a person their age. It is a difficult question to answer and is likely considered on a case-by-case basis. However, the state of Florida is very specific when it comes to the age of consent.

Florida’s age of consent is 18—meaning sexual activity between an adult and a person who is considered a minor could result in criminal prosecution. One possible defense to the age of consent is the Romeo and Juliet Statute, which can be read more in-depth here.

Potential Issues with Minors Accused of Sex Crimes

When looking at the sexual battery and other sex crime statutes, there is a portion of “offenders” who are considered minors, as well. These teens may not fit the image of terms like “pedophile” and yet they may end up with the same penalties.

When laws were first established to fight against the creation, distribution, or possession of child pornography, it was made with the goal of preventing the exploitation and sexual abuse of minors. These laws were also created during a time when social media, the internet, and texting weren’t as prevalent among young adults and teenagers. Now in the modern age, teenagers have access to technology that allows them to create or widely distribute sexually explicit material themselves.

In a criminal law review by Elizabeth Cauffman, Professor of Psychology and Social Behavior, and April Gile Thomas, doctoral student at the University of California, the two question the legal and psychological issues that surround minors and sexting, and the possible penalties if criminally convicted.

In one example, the law review discusses the possibility of separating sexting cases in which a juvenile has sent images or videos considered to be “sexts” to third party members and sexting between two consenting minors.

They use one example case of an 18-year-old who committed “revenge sexting” by forwarding nude images of his 16-year-old ex-girlfriend to over a dozen people. The defendant, Phillip Albert, was charged with child pornography and was forced to register as a sex offender in the state.

In a different example, A.H. v. Florida, 2007, a 16 year-old girl and her 17 year-old boyfriend took photographs with each other—both consenting to the images—and only sent the content to each other, never a third party. However, both teenagers were charged with child pornography after engaging in sexual activity and transferring the images to their home computer.

Despite A.H. filing an appeal to the court due to the images never being shown or displayed elsewhere, the appeal was denied due to the State having a “responsibility to protect children from exploitation.” The State later stated that they have a compelling interest to prevent minors from their “own immature judgment.” This example case affirms that even just taking a sexually explicit image or video of himself or herself by a minor can potentially result in child pornography charges—even without sharing the images.

The following statements are from the 2014 criminal law review, “Sexting as Child Pornography?”:

“Most of the applicable laws regarding child pornography thus did not (and generally still do not) draw any distinctions regarding the creation, transmission, or possession of such material by minors themselves.”

“…we argue that juvenile sexting behavior has largely been misclassified as child pornography in the eyes of the law, and we propose that specific legislation be put forth to address the behaviors and unique circumstances involved in youth sexting.”

According to the Florida Department of Law Enforcement’s page for Registered Sex Offenders, a juvenile in Florida is required to register as a sex offender if:

• The juvenile has been convicted as an adult for a qualifying sexual offense and meets the criteria under Florida Statute Section 943.0435 or 21 to register as an adult sexual offender or predator; or
• The juvenile was adjudicated delinquent on or after July 1^st, 2007 for a qualifying sexual offense in Florida or another state, or a similar offense in another jurisdiction when he or she was 14 years or older at the time of the offense. (An adjudicated delinquent is a minor who has been found guilty by a juvenile court judge of violating a Florida law.)

The qualification for a juvenile to register is located in Florida State Section 943.0435. A juvenile will be required to register as a sex offender if they were 14 or older at the time of committing any of the following offenses:

• A violation of sexual battery under Florida Statute Section 794.011;
• A violation of lewd or lascivious offenses under Florida Statute Section 800.04 if committed upon or in the presence of a person younger than 16 years-old in which:
  • The victim is younger than 12 years-old or where the court finds that the sexual activity was committed by use of force or coercion;
  • The court finds molestation involving unclothed genitals;
  • The court finds that the act was committed using force or coercion and unclothed genitals; or
  • Any other similar offense committed in the state which has been redesignated from a former statute number of the offender at the time of the offense.

Keep in mind, the Florida Sex Offender Registry requires all qualifying sexual offenders, sexual predators, and juvenile sexual offenders to be listed on the public registry website. In addition, they will be required to report to their county sheriff’s office four times a year—depending on their offense. As stated on their website, sexual offenders and predators MUST maintain registration for the duration of their life. Juvenile sex offenders may be able to petition the court after 25 years on the registry if they qualify, but there is no guarantee that the court will accept the request to remove the registry requirement.

Developmental Factors to Consider with Adolescents

The saying “age is just a number” is relevant is certain crimes in Florida. A juvenile charged with a more severe crime may be charged as an adult. However, expert witnesses have discussed the possible explanation behind why a juvenile might commit a crime, and in turn, should not be held to such a high degree as an adult with a fully developed brain who has been charged with a crime.

Neuroscience researchers, including Dr. James Garbarino, have provided data that explains that the human brain is not fully developed to its full maturity until the person has reached 25 years-old. In a criminal case involving a juvenile defendant, this data can be a useful defense during trial.

“There is a growing awareness of the role of trauma not just as a consequence of violence, but as a cause,” Dr. Garbarino told American Psychological Association.

Temple University Professor Laurence Steinberg, who focuses on adolescent brain development, has listed the following factual data on adolescents and crime:

• Compared to an adult, an adolescent’s brain has difficulty choosing between “seeking excitement” and “putting the breaks” on possibly illegal impulses;
• In a group setting with other adolescents around, the juvenile is likely to take more risks, as there is a greater activation of rewards centered in the adolescent’s brain;
• The behavior-governing section of the prefrontal cortex is still morphing, which can affect the juvenile from deciphering what is right versus what is wrong;
• The impact of receiving adult guidance makes a huge difference in the developmental stage of adolescence;
• Adolescents who are accused of a crime are often no longer looked at as the children they still are, which is especially true when a juvenile has been charged as an adult.

Considering all of the factors listed above, it can be extremely taxing for a teenager who has been charged with a criminal offense. It is important to consider factors such as the teens’ brains not necessarily being fully developed, coming from a traumatic background, or not having continuous and healthy adult guidance when a juvenile is charged with a crime.

In the instance that a juvenile has been charged with a crime in the state of Florida, a skilled defense attorney can work with a forensic psychiatrist or psychologist expert witness to assist with the case’s defense.

To find out more information on the adolescent brain and what experts say regarding teenagers and crime, read our blog post here.

How Sexting Can Lead to Criminal Charges

In the last decade, technological advances have made messaging via text message or social media a much more popular tool for both teens and adults. The term “sexting” became popular in the 21^st, century, and is defined as the sending, receiving, or forwarding of sexually explicit messages between two or more individuals. It is not an isolated act, but can refer to various types of sexual interaction in digital contexts that relate to sexual arousal.

When adults partake in sexting, it is entirely legal for them to send sexually explicit messages. This can include the transmission of images and videos, without the fear of being criminally prosecuted for such an act. However, if a teenager does the same, it could result in being charged with a crime in Florida.

On October 1^st, 2015, Florida Legislature passed a new sexting law to prevent juveniles from sending sexually explicit messages to one another. If charged with a sexting crime, a minor could face civil citations, a misdemeanor, or a felony charge depending on the details of the case.

Sexting Charges in Florida

Florida Statute Section 847.0141 explains that a minor (person under the age of 18) has committed the offense of sexting if they have knowingly:

• Used a computer or other digital device to transmit or distribute any image or video of any person which depicts nudity and is considered harmful to minors; or
• Possess an image or video of any person that was transmitted or distributed by another minor which depicts nudity and is considered harmful to minors.

Content that is considered “harmful to minors” references “any reproduction, imitation, characterization, description, exhibition, presentation, or representation of any kind sexual conduct, nudity, or sexual excitement when:

• The content appeals to a shameful, morbid, or prurient interest;
• The content is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material and conduct for minors; and
• The content when taken as a whole is without any possibility of serious literary, artistic, political, or scientific value for minors.

The term “nudity” is defined under Florida Statute Section 847.001(9) as the display of male or female genitals, pubic area, buttocks with less than a fully opaque covering, the display of female breasts with less than a fully opaque covering of any portion below the top of the nipple, or the display of male genitals covered in a discernibly swollen state.”

Exempted from the sexting law is any minor who did not ask or solicit for the sexting content, any minor who reported the sexting content to a law enforcement officer or other authoritative figures, or if the minor did not further transmit or distribute the sexting content to a third party.

Important: A minor caught with the possession of multiple examples of illegal sexting content will only be charged with a single offense if the images or videos had been sent within a 24-hour period.

While a first-time sexting offense only results in civil penalties, a person who has been accused of multiple sexting offenses can face felony charges in Florida. To review the penalties for a first, second, third, or subsequent offense for sexting, please read our page here.

Finding a Defense Attorney in Tallahassee, Florida

If you are a minor who has been accused of a crime, or if you are the parent of a minor who has been charged with a crime, it is highly advised to seek out the assistance of a defense attorney in your area. One mistake can lead to consequences that may haunt you for the rest of your life. A conviction can lead to paying fines, going to juvenile jail, commitment programs, or adult prison. It can also result in the teen getting expelled from school, losing their scholarship for university, or even registering as a sex offender in Florida.

When it comes to the prosecution of teenagers in Florida, the stakes are entirely too high. Don Pumphrey and his team of Tallahassee criminal defense attorneys have years of experience representing clients of all ages and walks of life in Florida. Our Tallahassee sex crime defense attorneys will do everything in their power to build a strong defense for your case and earn the freedom of your future. Contact Pumphrey Law Firm today for a free consultation at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

  Social Share