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When does teen sexting become child porn? Answer not always clear

In recent posts, we have discussed numerous important issues in the criminal justice system. These include sex crimes legislation, juvenile crime, children being charged as adults and the problems that can arise when statutes are written too broadly. These problems can be seen here in Wisconsin and around the country.

The story of a recent case is an example of all of these issues and more. The end result was that a young man and his girlfriend were considered both the perpetrators and victims of a crime which would not have come to light if someone had not searched his cellphone.

The incident happened in North Carolina, where 16-year-olds are legally allowed to consent to sex and can be charged as adults in criminal matters. The male defendant was just 16 when he snapped nude selfies on his cellphone. His phone also contained one nude picture of his girlfriend, also 16, who took the photo of herself and sent it to him.

During an unrelated search of the young man's phone, his nude selfies were discovered. Because the two teens were both considered minors under the law, their nude selfies constituted child pornography. As "victims," they were considered children.

Yet, absent a plea deal, both would have been charged with sexual exploitation for taking and possessing nude photos of themselves. As "perpetrators," they were considered adults. The young man could have faced up to 10 years in prison and registration as a sex offender. Both he and his girlfriend recently took plea deals that include a year of probation and an agreement to submit to warrantless, random searches by police.

Some might try to argue that courts were showing leniency. But is that really the case? Why did either teen need to face criminal charges in the first place? Aren't the criminal consequences imposed worse than the supposed harms they suffered as "victims?"

In any criminal case, context is highly important. Prosecutors have considerable discretion over how crimes are charged, and that power can be abused. For this and other reasons, anyone who is facing or will soon be facing criminal charges should seek the help of an experienced criminal defense attorney right away.

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