By: Attorney Marcus J. Berghahn
Selfies, self-portraits shared on social media, are common place, particularly among high school students. When sending selfies turns into sexting, three criminal laws are often implicated; all three could have serious consequences on those who send, receive or possess the images.
Many social media platforms, like snap-chat, use photos to communicate, so users are continually taking and posting images, mainly of themselves. Some of the social media platforms encourage users to take selfies by promoting that the shared images are fleeting and disappear after minutes. For some users of such platforms, this has encouraged the taking of selfies that are more risqué — including photos that reveal intimate body parts. Other social media users send intimate photos to friends believing that the images will not be shared or seen by others.
Those who share selfies that are revealing and intimate, including those who receive the intimate images must be aware of the legal issues attendant to the practice. The legal pitfalls include the age of the individual in the photos and the sharing of such images with others (and without the explicit consent of the person who is pictured in the photo), and showing such an image to an individual who is still a minor, even if he is a age-peer.
High school students (indeed, all young persons) need to be aware that a photo that reveals an intimate body part (whether a nude person, a partially nude person, or a person engaging in sexually explicit conduct) of a minor (that is, anyone under 18 years of age) is considered child pornography—a serious felony which carries a three year mandatory minimum prison sentence for anyone convicted of this offense (Wis. Stat. § 948.12). Moreover, conviction of this offense requires sex offender registration for at least 15 years. It is not a defense to the crime that the recipient was a minor, nor is it a defense that the image was shared consensually. State and federal law criminalizes the taking, the sending and the possession of photos that show intimate body parts. Thus the person taking the selfie and the person receiving the selfie are exposing themselves to a serious felony offense. Note well that under Wisconsin law, a seventeen year old is prosecuted as an adult.
Often images sent by one person to another are shared with a third. A boy who is interested in a girl asks her to send an image of herself partially clothed. She agrees. Sometimes he reciprocates. Later, the boy shares the photo with friends at school. But if the person whose photo is shared does not consent to the sharing of the intimate image, another criminal offense has occurred. Here, the act of sharing the image with another, where both parties are at least eighteen years old, is a criminal offense (Wis. Stat. § 942.09). Before an intimate image can be shared, the consent of the person in the image must be obtained. The unauthorized sharing of the image is in most cases a misdemeanor offense.
If the image is shared with someone who is not an adult (again, under 18 years old), a third criminal law has been broken. For showing an image involving nudity or sexual activity to a child may constitute exposing a child to harmful materials (Wis. Stat. §§ 948.05 & 948.11).
All three laws present grave danger to a teenager who through social media is sharing images of himself and others that are risqué. The consequences are significant, serious and long-lasting. If you or your child don’t get the big picture, call us.