Parents might want to know the legal definition of what is referred to as ‘sexting.’ Essentially ‘sexting’ means transmitting a pornographic or sexually explicit images of people under the age of 18 years through the Internet or by a telephone, among other devices and methods. A person can possess the image, can transmit or distribute the image or can cause another to create the image.
Note that it is a crime to possess images of one’s self on a device capable of transmitting the image. For purposes of this statute, “possession” means the non-exclusive control or dominion over sexually exploitative material. People v. Marsh, __ P.3d __ (Colo. App. 2011) [published December 22, 2011].
According to my research and according to my interviews with law enforcement officials, ‘sexting’ is common. Some sixty percent of teens engage in ‘sexting’ to one degree or another. Candidly, I don’t understand the motivation of the teens to do this. Certainly, the person portrayed by the image has created a piece of data that exists forever. The person portrayed has given great power to others and, as is so often the case, power can be and most likely will be abused. We have a situation, I think, where technology outpaces most people’s ability to comprehend the inferences and consequences of the technology.
It would seem parents have a tough job to become informed about this phenomenon and to educate their children about the dangers, the risks, the vulnerabilities and the legal liabilities of such behavior. Yet, many parents, according to my research, don’t see ‘sexting’ as a problem. Some parents believe their children should be able to express themselves in anyway they desire. Some parents believe the State has no role in dictating the limits of such behavior. Some parents believe that the behavior is simply ‘fun.’
Much of the literature I’ve read on the subject and opinions shared with me during interviews promote the explanation that teenagers that allow themselves to be photographed have ‘low self esteem.’ Well, if you say so. Frankly, I don’t know what the term ‘low self esteem’ means any more. But whatever it means, it is an emotion, an impulse, a tendency, a sense of self that can easily be controlled and transcended by self discipline, self awareness and self control.
Here is the controlling statute in Colorado: Colorado Revised Statute 18-6-403. Please note specifically Paragraph 18-6-403(3)
(1) The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child’s right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.
(1.5) The general assembly further finds and declares that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act or acts of sexual abuse of a child; that each time such material is shown or viewed, the child is harmed; that such material is used to break down the will and resistance of other children to encourage them to participate in similar acts of sexual abuse; that laws banning the production and distribution of such material are insufficient to halt this abuse; that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials; and that the state has a compelling interest in outlawing the possession of any sexually exploitative materials in order to protect society as a whole, and particularly the privacy, health, and emotional welfare of its children.
(2) As used in this section, unless the context otherwise requires:
(a) “Child” means a person who is less than eighteen years of age.
(b) (Deleted by amendment, L. 2003, p. 1882, § 1, effective July 1, 2003.)
(c) “Erotic fondling” means touching a person’s clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved. “Erotic fondling” shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.
(d) “Erotic nudity” means the display of the human male or female genitals or pubic area, the undeveloped or developing genitals or pubic area of the human male or female child, the human breasts, or the undeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.
(e) “Explicit sexual conduct” means sexual intercourse, erotic fondling, erotic nudity, masturbation, sadomasochism, or sexual excitement.
(f) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.
(g) “Sadomasochism” means:
(I) Real or simulated flagellation or torture for the purpose of real or simulated sexual stimulation or gratification; or
(II) The real or simulated condition of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.
(h) “Sexual excitement” means the real or simulated condition of human male or female genitals when in a state of real or simulated overt sexual stimulation or arousal.
(i) “Sexual intercourse” means real or simulated intercourse, whether genital-genital, oral-genital, anal-genital, or oral-anal, between persons of the same or opposite sex, or between a human and an animal, or with an artificial genital.
Sexually exploitative material” means any photograph, motion picture, video, video tape, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct.
(k) “Video”, “video tape”, or “motion picture” means any material that depicts a moving image of a child engaged in, participating in, observing, or being used for explicit sexual conduct.
(3) A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:
(a) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the making of any sexually exploitative material; or
(b) Prepares, arranges for, publishes, including but not limited to publishing through digital or electronic means, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or
(b.5) Possesses or controls any sexually exploitative material for any purpose; except that this paragraph (b.5) does not apply to peace officers or court personnel in the performance of their official duties, nor does it apply to physicians, psychologists, therapists, or social workers, so long as such persons are licensed in the state of Colorado and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site; or
(c) Possesses with the intent to deal in, sell, or distribute, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or
(d) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the purpose of producing a performance.
(4) (Deleted by amendment, L. 2003, p. 1882, § 1, effective July 1, 2003.)
(5) (a) Except as provided in paragraph (b) of this subsection (5), sexual exploitation of a child is a class 3 felony.
(b) Sexual exploitation of a child by possession of sexually exploitative material pursuant to paragraph (b.5) of subsection (3) of this section is a class 6 felony; except that said offense is a class 4 felony if:
(I) It is a second or subsequent offense; or
(II) The possession is of a video, video tape, or motion picture or more than twenty different items qualifying as sexually exploitative material.
(6) If any provision of this section or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.