Failed Legislation to Reduce Criminal Penalties under Florida Law Means Severe Consequences for Teens Who are Caught "Sexting" -- Morris Law Firm Weighs In

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Attorney with the Morris Law Firm discusses how juveniles may face charges of "child pornography" if they are caught sending inappropriate pictures of themselves or another young person over a cell phone.

If your teen is caught ‘sexting,’ both the minor that originally took the picture, and any minor who possesses such a picture or forwards the picture to others may face charges of child pornography, which is a felony in the State of Florida.

Attorney with the Morris Law Firm discusses how juveniles may face charges of "child pornography" if they are caught sending inappropriate pictures of themselves or another young person over a cell phone.

According to Attorney Melinda Morris, "Many parents do not realize that a juvenile can be charged with child pornography for sending any nude or semi-nude pictures of themselves or a class mate over a cell phone." This behavior, known as “sexting”, is so prevalent that a recent national study showed that one in five teenagers have sent sexy text messages with photos.* You may have read about cases in the local press where minors (teens) have been arrested for child pornography (a felony) for engaging in "sexting."

Under current law, a person who "sexts" another could be charged with one of the various statutes that prohibit the creation, possession, or transmission of child pornography - thus a minor could potentially face charges of child pornography for sexting.

On February 25, 2010, proposed House Bill 1335 was filed by State Representative Joe Abruzzo. The bill proposed to create a specific offense of "sexting" relevant to minors who partake in electronic distribution and possession of any photograph or video of himself or herself which depicts nudity and is harmful to minors. The proposed penalties under the bill would be less severe than the current law, and would start with a non-criminal violation punishable by 8 hours of community service and a $25 fine.

It was the mission of the sponsors of the proposed “sexting” reform bill, Rep. Joe Abruzzo, D-Wellington, and Sen. Dave Aronberg, D-Greenacres (Senate Bill 2560), to ease penalties on this common juvenile offense. “It treats this conduct as what it is, it’s stupid, but it’s not child pornography,” said Sen. Dave Aronberg, D-Greenacres, one of Senate Bill 2560’s sponsors. **

As discussed by Florida’s State Legislature in April 2010, the "reduced" consequences for sexting offenses would ease the penalties for the offense as follows:

  •     If a minor is guilty of “sexting”, a first offense would receive a sentence of 8 hours of community service and a $25 fine.
  •     A second offense would become a misdemeanor with a punishment of up to 60 days in jail and a $500 fine.
  •     A third violation will be a first degree misdemeanor with up to a year in jail and a fine up to $1,000.
  •     Finally, a fourth offense or more would become a third degree felony with a maximum sentence of five years in prison and a $5,000 fine.

At the same time, the bill specifies that the "sexting" provisions do not prohibit the prosecution of a minor for conduct relating to material that includes the depiction of sexual conduct or sexual excitement, and does not prohibit the prosecution of a minor for stalking.

Unfortunately for many teens that may be caught sexting, the proposed bill died in the Criminal & Civil Justice Appropriations Committee on April 30, 2010. It is uncommon for the State of Florida to reduce punishments or sentencing for any type of crime, in fact, just the opposite. Florida's Criminal Justice System has hardened criminal sentencing and punishment policies from 1980 to 2000, and has transformed the way they deal with criminals, including longer sentences and more serious punishments.

Even though this seemingly logical bill has not yet been passed in Florida, the proposed legislation highlights a disturbing nationwide trend of teenage cyber culture. Vicki Mabrey and David Perozzi of ABC News released an article in 2010, on Phillip Alpert, an 18-year-old from Orlando, who e-mailed a nude photo of his 16-year-old girlfriend to dozens of people, causing him to receive five years of probation and mandatory registration as a sex offender. *** In 2009, another case involved three Pennsylvania teenage girls who were charged with felonies for texting revealing images of themselves to their boyfriends.

Melinda Morris, St. Petersburg criminal defense attorney and former State Prosecutor in Florida, discusses how the failed legislation for the Offense of Sexting will affect juveniles.

“Whether you know it or not, many teen may be sexting their peers,” according to Melinda Morris, juvenile defense attorney in St. Petersburg, Florida, "If your teen is caught ‘sexting’, under the current law as stated in Chapter 847 of the Florida Statues, both the minor that originally took the picture, and any minor who possesses such a picture or forwards the picture to others may face charges of child pornography, which is a felony in the State of Florida."

Morris stated that, “Parents should be aware of the consequences, and talk with their children about the dangers of sending racy photographs over a cell phone or other electronic devices. Although it is widely recognized that ‘sexting’ is more youthful folly than hardened criminal behavior, the State of Florida still recognizes it as child pornography, a felony punishable by jail time and potential registration as a sex offender. Charges such as these can have a dramatic effect on a child’s future including loss of school eligibility and scholarships, loss of employment, probation, curfew, and other severe penalties.”

Morris counsels clients that, “If your teen is under investigation or arrested for ‘sexting’, do not speak to the police, and do not give a written statement. Ask to have an attorney present, and contact an attorney immediately.” Morris indicates that oftentimes a child can be intimidated by law enforcement and unknowingly make a statement that can be harmful from a legal defense perspective. She cautions that before communicating or making statements to any law enforcement agencies, or the Department of Children and Families concerning allegations of “sexting”, be sure to obtain adequate legal representation.

Thus, Morris suggests it is important to engage an attorney quickly as you have a very narrow window of time between when your child is investigated and/or arrested and when the State Attorney's Office makes a decision to file a criminal charge. Retaining an attorney's representation immediately to negotiate on your child's behalf with the state attorney's office provides the best chance of avoiding criminal charges for your child.

Morris advises, “The penalties for juvenile sex offenses in Florida are severe. It is important to understand that you only have one chance to defend your child.”

Attorney Melinda Morris, managing partner of the Morris Law Firm, represents minors in juvenile courts in St. Petersburg, Clearwater, Pinellas County, Tampa, Hillsborough County, Pasco County, Manatee County, and Sarasota County, Florida.

References:
*http://nieonline.com/sptimes/frontpage.cfm?lessondate=20100412
**http://articles.sun-sentinel.com/2010-04-29/news/fl-sexting-passes-20100429_1_sexting-child-pornography-florida-senate
***http://abcnews.go.com/Nightline/phillip-alpert-sexting-teen-child-porn/story?id=10252790

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