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  1. #1
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    Feb 2011
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    Default Sexting With a Minor

    My question involves criminal law for the state of: florida

    I have a friend who is 19 who is dating a 17 almost 18 year old girl and awhile back apparently he sent her some "pictures" she asked for, needless to say the parents found them and he asked me to find out some information on whether or not they can press any charges. The only thing i have found so far was that legally as far as i know any person under 24 can enter into sexual contact with any person over the age of 16, as far as pictures i don't know what that falls under. Also i think in either five days or seven not sure which, she turns 18, can they still pursue charges after she is 18?

  2. #2

    Default Re: Sexting With a Minor

    Yes, the state can still bring charges if the crime occurred when the subject receiving the pics was a minor. The parents can absolutely file a police report, and it'll be up to police to investigate and turn the case over to the DA who will then decide whether or not to pursue the matter in the criminal courts. in Florida, such cases would typically be pursued under statutes of lewd acts, which might get pled down to one of several other possible charges.
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  3. #3
    Join Date
    Feb 2011
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    Default Re: Sexting With a Minor

    seems this would fall under this statue: 847.0138 Transmission of material harmful to minors to a minor by electronic device or equipment prohibited; penalties.--

    (1) For purposes of this section:

    (a) "Known by the defendant to be a minor" means that the defendant had actual knowledge or believed that the recipient of the communication was a minor.

    (b) "Transmit" means to send to a specific individual known by the defendant to be a minor via electronic mail.

    (2) Notwithstanding ss. 847.012 and 847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    (3) Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    The provisions of this section do not apply to subscription-based transmissions such as list servers.

    seems the penalties would be as follow according to 775.082/.083 "For a felony of the third degree, by a term of imprisonment not exceeding 5 years."

    and, according to the statue of limitations it must be pursued within three years if i am correct http://www.docstoc.com/docs/52480128...n-Sex-Offenses? just checking to see if i have my info correct here, funny how i dig up all this info waiting on a reply haha.

  4. #4
    Join Date
    Dec 2010
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    12

    Default Re: Sexting With a Minor

    Correct. However, it's not so cut-and-dried. I know of at least one case where a person has successfully defended against a charge under an equivalent statute by claiming that that the nature of material as "harmful to minors" did not depend on the medium or form it took, and that therefore, because the minor was capable of consenting to sexual intercourse, anything which the minor would normally see in person during course of that act could not be considered "harmful" only because it was in a different form.

    Of course, that defense could be countered by the claim that the minor did not consent to sexual intercourse, and that the consent to view such material is implicit in that consent.

    Talk to a competent criminal defense lawyer.

  5. #5
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    Jan 2006
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    25,712

    Default Re: Sexting With a Minor

    the problem with that defense is that the laws concerning minors and their ability to consent do not necessarily allow one to nullify the other.

    As an example; if the minor had sent nude pictures of her, regardless of the fact she may be allowed to bare herself to others, child pornography is still illegal. She could be found guilty of producing and dispersing child porn and he would be guilty of possession of child porn even if each of them willingly engaged in the activity.



    I don't necessarily disagree with your position. It's just that, even as you said, it tends to try to mix several laws together to give reason to the defense. That usually takes a very persuasive lawyer and a liberal court. Laws created to protect minors are often seen as being strict in their application to avoid such defenses. Once you start getting minors on the stand saying "ya, I asked for a pic of his stuff", you start down that slippery road to Hell. The courts tend to resist diluting the laws intended to protect minors.
    I am not an attorney and any advice is not to be construed as legal advice. You might even want to ignore my advice. Actually, there are plenty of real attorneys that you might want to ignore as well.

  6. #6
    Join Date
    Dec 2010
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    Default Re: Sexting With a Minor

    I agree with you, one law cannot "nullify" another, and I should have clarified my point. The statute in question was deemed to be impermissibly vague as applied, on the grounds that "no person of ordinary intelligence would think that he could legally [be naked in front of and] have sexual relations with another person, but could not send that same person an electronic image of his genitals", admittedly coming to that conclusion "in light of ... the age of consent to sexual relations".

    That of course leads us into the question of what exactly the scope of the "void for vagueness" doctrine is, and, sadly, that seems far from clear. Should a person be expected to read a statute literally or give the words their normal meaning? Does a statute give fair notice where it is logically consistent yet highly counter-intuitive either in its own right or in light of other statutes?
    I don't know. If I had time, I'd review the case law.

    As I said, I'm far from being entirely convinced by that defense, mainly because of the glaring consent issue which wasn't even addressed, but also because the vagueness doctrine is not ever a nice thing to have to rely on for a defense. I was mentioning it as an aside, and it was certainly not meant as legal advice (nor is anything else I write on this forum).


    You also raise an interesting point with your second paragraph. Child porn is a different case, because the victim is not the person it is being sent to. I think you're too hasty in coming to the conclusion that she would be convicted, however. There's a multitude of constitutional issues here, but to cite just one example, the statute is quite possibly unconstitutionally vague as applied to a person taking a picture of themselves. Long story short, the Supreme Court concluded in Gebardi v. United States that the Mann act, a similar if more simply worded statute than the federal child pornography statutes "does not punish the woman for transporting herself; it contemplates two persons", even though nothing in the statute stated that the two persons must be different. If even the supreme court is capable of misinterpreting a statute at face value, then it's arguable that the statute does not give fair notices to "person[s] of ordinary intelligence".

  7. #7
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    Default Re: Sexting With a Minor

    Jh1987;495285]

    That of course leads us into the question of what exactly the scope of the "void for vagueness" doctrine is, and, sadly, that seems far from clear.
    kind of ironic, but as with with most statutes, it is very difficult to make a bright line point of differentiation due to the myriad laws it must apply to.

    Should a person be expected to read a statute literally or give the words their normal meaning?
    Unless specifically defined either through statute or case law, normal meaning would have to be used. The bigger problem is; letter or spirit




    As I said, I'm far from being entirely convinced by that defense, mainly because of the glaring consent issue which wasn't even addressed, but also because the vagueness doctrine is not ever a nice thing to have to rely on for a defense. I was mentioning it as an aside, and it was certainly not meant as legal advice (nor is anything else I write on this forum).
    Understood but it is a reasonable point.


    You also raise an interesting point with your second paragraph. Child porn is a different case, because the victim is not the person it is being sent to. I think you're too hasty in coming to the conclusion that she would be convicted, however
    . ah...I didn't say Would. I said Could. I know charges for such have already been presented in several situations similar to my scenario. I do not know the results of the cases though.

    There's a multitude of constitutional issues here, but to cite just one example, the statute is quite possibly unconstitutionally vague as applied to a person taking a picture of themselves. Long story short, the Supreme Court concluded in Gebardi v. United States that the Mann act, a similar if more simply worded statute than the federal child pornography statutes "does not punish the woman for transporting herself; it contemplates two persons", even though nothing in the statute stated that the two persons must be different. If even the supreme court is capable of misinterpreting a statute at face value, then it's arguable that the statute does not give fair notices to "person[s] of ordinary intelligence".
    the fact that it is not "the person" but a photograph would allow it to be not protected by such a decision. In simple terms (not that you need them but it works for me); arguing your point, a minor could make kiddie porn movies of themselves as long as they were of the age of consent and distribute them because it is their image. It is removed from a personal right. The sender has in essence made the creation become porn by the act of distributing it. If they retained it for personal review only, I would think it would be difficult to sustain any such charges. It must be reviewed in the light it is discovered. It is porn once the adult possesses it regardless of the girls right to create it as a private matter. If it is porn in the receivers hand, it has to be considered porn in the senders hand.
    I am not an attorney and any advice is not to be construed as legal advice. You might even want to ignore my advice. Actually, there are plenty of real attorneys that you might want to ignore as well.

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