Teen Sexting and the purpose of 18 Pa.C.S. § 6321

It is beyond obvious that smartphone use among teens, and younger children, is prevalent. Young people primarily use their phones to access the Internet rather than a computer. It should be no surprise, that when teenagers are always armed with a camera and the ability to instantly publish their photos and videos that problems would arise.

“Sexting” is defined as an act by a minor of producing, possessing, and disseminating an electronic communication of a sexually explicit image of himself/herself or another juvenile. In short, it is an exchange of sexually explicit or suggestive images through text message on cell phones. Law enforcement typically becomes involved in sexting after an image is re-sent by the original recipient.

Having been married by the time the iPhone was first released, I am grateful that cell phones were large, expensive, and were only capable of voice calls during my adolescence. Nevertheless, being a parent of young children, I am very concerned about teaching my kids to use technology responsibly; however, I am terrified that they will fail to heed my advice. Fortunately, our law makers recognized the need for better rules in dealing with minors who send or share sexually explicit images.

Pennsylvania’s legislature passed 18 Pa.C.S. § 6321 to assist law enforcement with appropriately prosecuting juvenile sexting. Before this law was created juveniles were being charged under Pennsylvania’s pornography statute, 18 Pa.C.S. § 6312, the sexual abuse of children, without consideration of the context of the allegation or offender’s age and/or maturity level.  

Understanding section 6321

                 Section 6321 Only Applies to Minors

To start, the law only applies to individuals under 18 years of age. Anyone 18 or older who participates in sexting with a minor is liable for the sexual abuse of children under 18 Pa.C.S. § 6312. Anyone over the age of 18 who engages in consensual sexting with another adult is not violating the law.

Nudity & Certain Prohibited Non-Nude Images

It is important to understand that this law prohibits any nudity that is shown for sexual stimulation or gratification. Under this law, nudity includes any genitalia, pubic area, or buttocks. However, nudity also includes the female breast below the top of the nipple. By this standard, cleavage is not nudity; however, a “sexually suggestive” display of a breast below the nipple is illegal under this rule. Covered male genitals is another matter if it is shown “in a discernibly turgid state.” An erect penis is considered “nudity” even if it is clothed or otherwise covered. Thus, a photo of an obviously erect penis is illegal under this rule if depicted for sexual gratification.

No Sexual Offender Registration

Most importantly, a conviction of 18 Pa.C.S. § 6321 does NOT require the offender to register or report as a sexual offender. See 42 Pa.C.S. 9799.14

Section 6321 does NOT Cover Every Intimate Image Shared By a Minor

It is important to understand that this law does not cover all cases in which a minor is accused of making or sending nude or sexually suggestive images.

All images that depict sexual intercourse, masturbation, or any other sex act are NOT prosecuted under 18 Pa.C.S. § 6321. Likewise, any sexually explicit image of a minor taken, made, used or intended to be used for, or in furtherance of a commercial purpose does not fall under this rule. Also, if a current or former sexual or intimate partner disseminates an “intimate image” of the other (minor) partner with the intent to harass or alarm, the conduct is punishable by a separate offense (18 Pa.C.S. section 3131) and is graded as a misdemeanor of the first degree. Further, section 6321 only covers the conduct and images of minors between the ages of twelve (12) and eighteen (18). Sexually suggestive images of children under 12 taken or shared by minors are excluded from this law and will likely face the more severe punishment set in the offenses discussed below.

A minor accused of these more serious violations will likely be prosecuted pursuant to 18 Pa.C.S. § 6312, sexual abuse of children (child porn); 18 Pa.C.S. § 6320, sexual exploitation of children; 18 Pa.C.S. § 3131, Unlawful dissemination of intimate image, and/or 18 Pa.C.S. § 7512, Criminal use of communication facility. Except for section 3131, which is graded as an M1 when involving a minor, the other crimes are felony offenses.

Both sections 6312 and 6320 are Tier II sexual offenses that require twenty-five (25) years of registration with the state police as a sex offender. Sections 3131 and 7512 are not a sexual offense so they do not require any period of reporting. The rules concerning juvenile sexual offender registration are very complex and are a topic requiring the full attention of a separate commentary.

How Section 6321 is Graded

There are three gradings for violations of this law. The grading of the offense determines the range of punishment and eligibility for removing convictions from an individual’s criminal history.

Summary Offense Violations

A summary offense is punishable by a maximum of 90 days jail and a maximum fine of $300.00. A minor is guilty of a summary violation when he/she knowingly:

• Send a sexually explicit image of himself/herself;
• Possesses a sexually explicit image of a minor 12 years of age or older; or
• Views a sexually explicit image of a minor 12 years of age or older.

M3 Violations

Anytime a minor knowingly publishes or sends a sexually explicit image of another minor who is 12 or older, he/she commits a misdemeanor of the third degree (M3).

An M3 is punishable by a maximum of 1 year in jail and a $2,000.00 fine.

M2 Violations

If a minor makes or sends a “nude” photo or video of another minor without the knowledge or consent of the depicted minor and the photo or video is made or shared with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, it is graded as a misdemeanor of the second degree.

A M2 is punishable by a maximum of 2 years in jail and a $5,000.00 fine.

Here, it is important to note that the government must prove two (2) additional elements to convict a minor of the M2 version of this crime. First, the Commonwealth must prove that the image of the minor was made or shared without his/her knowledge or consent. If the minor shown in the image admits, or if other evidence suggests, that he/she consented to the making or sending of the image, the offense cannot be properly graded as an M2. Second, the government must also show that the image was made or shared with the specific wrongful intent specified in this law. If there is no evidence that the accused acted with the relevant intent (i.e. to coerce, intimidate, torment, harass, or otherwise cause emotional distress), the offense should be charged as an M3.

Procedure / Resolution

Summary Violations - Adjudication Alternative Program

Typically, a summary violation of section 6321 can be resolved with a single court hearing at the magistrate district court level.

When a summary violation of this law is charged, the judge (typically a magisterial district judge) should first consider the minor’s eligibility to participate in a diversionary program called the adjudication alternative program. As part of the program the judge may order the minor to participate in an educational program which includes the legal and non-legal consequences of sharing sexually explicit images.

Expungement of Section 6321 Summary Convictions

Upon successfully completion of the diversionary program, the minor's record of the summary charge is entitled for expungement pursuant to Pa.R.C.P. 320 (concerning expungement upon successful completion of ARD program). This means that once the expungement is granted, no record will remain on the individual’s criminal history. However, like with ARD, the District Attorney is permitted to retain a list of those who participated in the diversion program for the purposes of determining eligibility should there be a repeat offender.

A conviction for a summary offense under section 6321 becomes eligible for expungement once the individual becomes 18 years old and 6 months has passed from the date after the sentence is fully satisfied. So long as the individual has not been convicted of any felony or misdemeanor, has not been adjudicated delinquent, and there is no pending proceeding seeking conviction / adjudication, the minor is entitled to the expungement after giving 30 days’ notice to the District Attorney.  If all these conditions are not met, an expungement may be granted with the District Attorney’s consent.

Subsequent Summary Violations

Repeat offenders will likely receive a fine up to $300.00 plus court costs. The summary conviction will remain on the minor’s record until he/she moves for expungement and are eligible as explained above.

Misdemeanor Violations

Brief Overview of the Juvenile Process

In Pennsylvania, “juvenile proceedings are not criminal proceedings. Under the Juvenile Act, juveniles are not charged with crimes; they are charged with committing delinquent acts. They do not have a trial; they have an adjudicatory hearing. If the charges are substantiated, they are not convicted; they are adjudicated delinquent. Indeed, the Juvenile Act expressly provides an adjudication under its provisions is not a conviction of a crime. 42 Pa.C.S.A. 6354(a).... These are not insignificant differences or the transposing of synonyms. The entire juvenile system is different, with different purposes and different rules.” In re S.A.S., 839 A.2d 1106, 1108-09 (Pa. Super. 2003).

When a misdemeanor is charged for a section 6321 the offender will first meet with a juvenile probation officer for an intake meeting. At the meeting, the juvenile has a right to have a lawyer present. The offender may decide to retain a private attorney or he/she can seek representation through the Public Defender’s Office at no cost. Parents and/or legal guardians are also able to attend the intake meeting. These meeting are usually informal; however, there are important decisions to make prior to attending. The accused should be counseled on whether or not to discuss the allegations with the probation officer.

In general, the purpose of the intake meeting is for probation to determine how the case should proceed. A juvenile case can be disposed of with: an informal adjustment (a recommendation the allegation is dismissed or dismissal upon completing agreed upon conditions), a consent decree (a more formal diversionary program), or a formal hearing before a judge. If a judge finds an accused delinquent, the offender may be given a term of probation or placed in a detention facility.  

Expungement of Misdemeanor allegations of Section 6321

If a juvenile case is dismissed or if an allegation is filed but is not approved for prosecution, the accused is entitled to an expungement upon giving the District Attorney 30 days notice.

Allegations resolved with an informal adjustment, consent decree, adjudication alternative program, or other diversionary program, are entitled to an expungement once 6 months have elapsed from the successful completion of the program provided that no proceeding seeking adjudication or conviction is pending and the District Attorney is given 30 days notice of the expungement petition.

If a case results in a finding of delinquency, commitment, placement, probation or any other disposition or referral, the individual is entitled for expungement once 5 years have elapsed from the persons final discharge as long as the person has not been convicted of a subsequent felony, misdemeanor, has not since been adjudicated delinquent, and has no pending cases.

There is no right to an expungement when a person is an adjudicated delinquent for an offense involving rape, involuntary deviant sexual intercourse, or aggravated indecent assault that was committed when the offender was 14 years old or older.  

Individuals who do not meet the statutory requirements for expungement may still be able to have their record expunged provided that the District Attorney consents to the petition and the court issues an order granting expungement.

Forfeiture

Any cell phone or other electronic communication device used in a section 6321 violation is subject to forfeiture to the Commonwealth. This means that the Commonwealth has the right to destroy, keep, use, and/or sell any device used to commit a 6321 offense. The offender has no right to the content on the device or to any compensation should it be seized or sold.

Tips for 18 Pa.C.S. § 6321 Investigations / Prosecutions

If your child is being investigated about an image he/she may have sent, viewed, or possessed, you should speak to an experienced criminal defense lawyer as soon as possible. Speaking with a defense lawyer is important because every case is different. For example, the facts of some cases may justify speaking and/or cooperating with the police. In some cases, doing so can help to reduce the charges and resolve the case. It is important to explain all the details of a case to the lawyer so he/she can offer appropriate advice.

Without a Lawyer, Remain Silent

You and your child have the right to remain silent. You should exercise your right and your child’s right not to speak with the police or anyone else when questioned. While I respect the police and the important and difficult job they have, speaking with them is unlikely to help your situation. However, speaking to the police will typically help them to prove their case against your child.

Require a Search Warrant

Likewise, for the police to legally search the contents of a cell phone, a valid search warrant is generally required. Do not offer your consent to the search. Make the police apply for and get a warrant to seize and search the phone.

Remember that the Commonwealth has the Burden of Proof

It is important to remember the Commonwealth bears the burden of proof in these cases. Your child has nothing to prove relevant to this case. Likewise, be aware of the intent needed to establish criminal liability under this rule. The prosecution is required to show a mental state that is at least “knowingly.” Accordingly, if a minor charged with violating this law and can show that he/she unknowingly sent, possessed, or even viewed a sexually explicit image, the minor is not criminally liable under this statute. Moreover, to convict a minor of the most severe version of this crime, the Commonwealth must show the accused acted with the wrongful criminal intent the statute requires.  

Prevention Strategies

It is essential to accept that technology typically presents benefits and challenges in equal parts. It is also critical to understand how devices and their applications work and try to anticipate the problems they may present. Most importantly, adults must be empathetic when confronted with minors misusing technology in general, and specifically in sexting cases. Raging hormones and smartphones are a recipe for mishap. If parents do not closely monitor a child’s use of technology they should not be alarmed or aghast when confronted with a sexting case.

Moreover, parents/guardians, educators, and the police have a responsibility to educate minors and raise awareness of this issue and the emotional and physical harm it often causes. It is further recommended that:

1. Parents and Guardians must assess if a minor is capable of responsibly using any technology.
2. Parents and Guardians should consider alternatives to smart phones and other personal “smart” mobile technology.
3. Parents and Guardians who provide technology to children must discuss responsible usage with the child and inform the child of the emotional, legal, and other consequences of taking sexually suggestive images and sexting.
4. Parents should monitor a child’s technology use and implement consequences for any misuse.
5. Schools must develop clear anti-sexting policies, make students aware of the policies, and strictly enforce the policies.
6. Police agencies and our courts must make it clear that they strictly enforce 18 Pa.C.S. § 6321.
7. Our courts must monitor the effectiveness of anti-sexting education and diversion programing, seek to improve it, and update it to keep it technologically relevant and trend current so minors are more likely to relate to it.