Sexting - Harper & Harper

What you and your child should know about sexting and the law in the State of Indiana

In the age of social media and cell phones, juveniles face a potential legal minefield when it comes to sexting.

Here’s what you should know.

To begin with, a juvenile in Indiana is defined as a person under the age of 18.

A common misconception is that a juvenile *cannot* be charged with the crime of Possession of Child Pornography or the crime of Child Exploitation. That is false.

For example, it’s considered Possession of Child Pornography if a juvenile knowingly *possesses* a picture of another juvenile’s uncovered genitalia, or a female juvenile’s uncovered breast, if the picture was intended to arouse a person’s sexual desires.

It’s an even more serious crime called Child Exploitation for a juvenile to film, take, show or distribute such a picture or film to someone else, including to text or email the picture or video to someone else.

In other words, the act of a juvenile filming or taking such a picture or video or showing it to someone else, whether by text or email—as opposed to simply *possessing* it—increases the *severity* of the crime.

There is a *limited* defense to either of these very serious charges, if, and only if, *all* of the following 4 things can be shown:

  1. The juvenile who possessed, took or shared the image (or video) did so using a cell phone or social networking web site;
  2. The juvenile was not more than 4 years older, or younger, than the juvenile depicted in the photo (or video) or the person who received the image;
  3. The relationship between the juvenile and the individual who received the image or who was depicted in the image was in a dating or an ongoing personal relationship; and
  4. The individual receiving the image, or who is depicted in the image, consented in the conduct.

However, the defense is *not* available if:

  1. the person who *receives* the image shares it with someone other than who sent it, or who is depicted in the image; or
  2. if the image is of a person other than who sent or received the image.

Which means that if a juvenile receives a picture or video of a juvenile engaged in sexual conduct, the juvenile should *never* forward, share, text, email or show the image to *any* other person. The juvenile should *immediately* delete the image, and notify their parent.

Because of the harsh results involved with filing a charge of Possession Child Pornography or Child Exploitation against a juvenile in a sexting situation, Indiana law was changed so that a prosecutor could, in *limited* situations, file a *lesser* charge of Indecent Display by a Youth,  a misdemeanor.

Similar to the defense of Possession of Child Pornography, such a charge is *generally* only available if the juvenile was not more than 4 years older than the juvenile depicted in the image or video; had a dating or ongoing personal relationship with that person; and if the person depicted in the image or video consented to the taking, showing, emailing, texting or distributing of the picture or video.

Moreover, such a lessor charge is *never* available if a juvenile—regardless of his or her age—takes, shows, emails, texts *or even possesses* an image or video that includes sexual conduct or the uncovered genitalia of a child under the age of 12.

If you have questions about Indiana’s sexting law, please call Harper & Harper for a free, initial consultation.

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