When Is Sexting Considered Child Pornography?

Two years ago, a youth from Pennsylvania felt relief when a Legigh County judge agreed with the girl's attorney about charges she faced. The girl had been faced with child porn charges after she posted a video showing two other teens engaged in a sex act. The Legigh County judge agreed that the charges were an "overreaction by law enforcement" and dismissed them in 2012. Two years later, the girl commonly referred to as C.S. in the court papers, must return to juvenile court and face felony charges. The state Supreme Court has to draw the line where poor judgment by sexting teens ends and criminal exploitation by child pornographers begins.

In May 2012, C.S. was charged with possessing and disseminating child pornography, for posting to her Facebook page the consensual sex acts of two teenagers. Both teenagers had willingly participated in the brief video of a consensual sexual act at least one year prior to the charges being filed against C.S. One of the teenagers within the video had reportedly posted the video and sent it to C.S. but was never charged with possessing or disseminating child pornography. The attorney for C.S. argued that her client's actions were not the kind legislators intended to prevent when they passed the state's child pornography law.

In 2012, Pennsylvania amended it's state child pornography law. The amendment was created to prevent the sexual abuse of children. The attorney for C.S. argued that sharing photos or videos that were created voluntarily by the teens in them lacks the elements of abuse and exploitation minors suffer when they appear in pornographic materials. The Legigh County judge that overheard this case agreed with the defense attorney. The judge even went further to say that the state's child porn law was unconstitutional because it failed to provide a teenager of ordinary intelligence fair notice of what is prohibited.

The dismissal was appealed by the state before the Supreme Court. The prosecutors argued that the judge should not have dismissed the charges on the grounds it did because the defense had not raised those grounds at trial. The Supreme Court of Pennsylvania agreed with the prosecutors. Specifically, the justices stated that the judge overstepped by raising a defense not put forth by the defense attorneys. The Supreme Court of Pennsylvania found that because the issue was not challenged in the trial court, C.S. waived the issue for purposes of appeal.

Source: ABA Journal, Child porn charges reinstated against teen who posted sex video on Facebook, Debra Cassens Weiss, 1/27/2014

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