Is Sexting by a Child a Crime in Minnesota?

Believe it or not, the answer is that it could be. If somebody sends a digital photo of somebody nude or partially nude under the age of 18, this fits the definition of child pornography, even if all parties agree. While some may think this is rare, it is not. Sexting is far more common than many realize and some recent studies exceed 15-20% of teenagers. The problem is that child pornography laws in Minnesota can be extraordinarily aggressive and they don’t make any distinction between whether it is sexting between consenting high school kids or whether it is an adult seeking it on the internet. This doesn’t even include the 10 year sexual predator registration requirement that come as a result of a conviction.  If you are facing child pornography charges in Minnesota, make sure you contact an experienced Sex Crimes Attorney immediately.  Better yet, make sure that Sex Crimes Criminal Attorney is also a Board Certified Criminal Law Specialist.   

What Charges can Somebody Face for Sexting?

Sexting a photo of a minor could result in being charged with possession of child pornography, distribution of child pornography or even production of child pornography.

Possession of Child Pornography

According to the Statute, the criminal charge of possession applies to “a person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character.” Meaning, any work of a person under the age of 18 would apply. Notice that this could easily include possession of a digital photo on a phone as a result of sexting.

For possession of child pornography for a first time offender as an adult, sexting, a defendant could face the following:

• Up to 5 years in prison;

• $5,000 fine;

• A felony conviction.

While it is different if the person is a juvenile, that too comes with a whole host of problems. While there is the possibility of certification as an adult, even if it stays in juvenile court, an adjudication could result in a 10 year mandatory sexual predatory registration requirement. If the child in the image is under 14, the ramifications are even worse.

Distribution of Child Pornography

According to the Statute, the criminal charge of distribution to “a person who disseminates pornographic work to an adult or a minor, knowing or with reason to know its content and character.” Consider that this fits squarely within the circumstances involving sexting.

For distribution of child pornography for a first time offender as an adult, a defendant could face the following:

• Up to 7 years in prison;

• Up to $10,000 fine;

• A felony conviction.

Again, the registration requirement continues even if the perpetrator is a juvenile. Further, if the child in the image is under 14, the ramifications are even worse.

Production of Child Pornography

According to the Statute, the criminal charge of production applies to “a person to promote, employ, use or permit a minor to engage in or assist others to engage minors in posing or modeling alone or with others in any sexual performance or pornographic work if the person knows or has reason to know that the conduct intended is a sexual performance or a pornographic work.” Consider, if a juvenile actually takes the photo, does this not fit into the definition of production?

For production of child pornography as an adult, for a first time offender, a defendant could face the following:

• Up to 10 years in prison;

• Up to $20,000 fine;

• A felony conviction.

Like possession and distribution, there are circumstances where criminal exposure can be even worse.  This includes if the possession is of a minor under the age of 14, the person is already a registered predatory offender or if this isn’t their first offense.

The purpose of prosecuting child pornography is to protect children from this abuse. Sexting, while potentially damaging, seems clearly to fall into a different category. And yet, the potential is that a prosecutor may simply not see it that way. That being said, prosecutors here in Minnesota may have discretion to determine how these kinds of cases are handled.

Go with the Best

If you are facing child pornography charges in Minnesota and they are related to sexting, it is critical that you contact an experienced sexting criminal defense attorney immediately. These kinds of charges may start as juvenile charges but that doesn’t mean that they will stay there. There is the possibility of adult certification. This means that a child could face adult charges and adult jail or prison. In the end, these are the kinds of charges that can truly destroy a person’s future.

Jack Rice is a former prosecutor, a former CIA Officer, and a Board Certified Criminal Law Specialist. He is also the Founder of Jack Rice Defense, a Boutique Criminal Defense Firm based in St. Paul. Contact Jack Rice Defense for a free confidential consultation or call 651-447-7650 or 612-227-1339.