“Sexting” Case Pits Technology Against the Law

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A sex crime defendant in Georgia recently challenged the constitutionality of his charges for “unsolicited sexting” on the grounds that the law didn't criminalize his conduct.

The defendant in Warren v. Georgia emerged victorious, with the Georgia Supreme Court ruling that his conduct – sending an unsolicited photograph of his genitalia to an adult woman via text message – was not covered under the statute. In part, the defendant won his case because the mode of delivery – text messaging –was not in existence at the time the law was written in 1970.

The state supreme court ruled that “the specific prohibition is clearly aimed at tangible material that is delivered in a tangible manner… Because appellant didn't send anything through the mail, he did not violate this prohibition.”

Our Birmingham sex crime defense attorneys recognize this as one area where the law has yet to catch up with technology. However, defendants can't count on that being the case for long, particularly where minors are concerned.

Sending sexually explicit messages or images via text is often today referred to as “sexting.” Teens and young adults must be especially careful where this is concerned because if one (or even both) of the parties is underage, it can quickly snowball into an alleged case of child pornography.

In the Warren case, all parties were adults. The statute in question barred the distribution of material depicting nudity or sexual conduct when that material is sent “unsolicited through the mail” and where there is no warning on the envelope or container that potentially offensive materials may be contained inside. Being that the law passed in 1970, there is no mention of “text messaging.”

As the court was quick to note, the statute is not inapplicable solely because text messaging as a form of communication didn't previously exist. The court reviewed the statute by looking at the ordinary meaning of the terms at the time the law was enacted by the state's General Assembly to determine whether the intangible text message was within the scope of the statute. The court determined that the law was specifically aimed at “tangible” material that is delivered in a “tangible manner.” Specifically, the law indicates that the notice of potentially offensive material “must be imprinted” on the container or envelope.

Following the ruling, state legislators announced that they planned to introduce new legislation that would specifically bar unsolicited text messages containing nudity or other offensive material.

In Alabama, “sexting” is covered under several criminal statutes in state law. The law outlaws sending electronic images of underage individuals engaged in sexual activity, and it also makes it a crime to possess, produce or sell child pornography or to transmit those images on a computer or cell phone.

Violations of these statutes are considered felonies.

Even when no child is involved in the depictions, if that material is sent to a child (or someone the defendant believes to be underage), he or she can face a felony, potentially carrying up to 20 years in prison.

It only takes a few seconds for a text message to be sent, but the implications can last a lifetime.

Contact Birmingham Sex Crime Defense Attorney Steven Eversole at (866) 831-5292.

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Birmingham, Jefferson County including Bessemer, Homewood, Hoover, Irondale, Leeds, Mountain Brook, Trussville, and Vestavia Hills, Shelby County (including Pelham, Alabaster, Chelsea, Calera), Tuscaloosa, Auburn, Huntsville, Calhoun County including Anniston, Etowah County including Boaz and Gadsden, Cullman County including Arab and Cullman, Madison County including Huntsville and Madison, Montgomery County including Montgomery, and all of Alabama.

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