Sexting Legislative Update: What a Criminal Lawyer in Portland, Maine Thinks You Should Know

Sexting: (noun) the act of sending sexually explicit images by cell phone texts or other electronic means.

Sexting is a relatively new phenomenon primarily among teens and tweens. Many states treat it as possession and/or dissemination of child pornography, which is a serious crime with serious consequences including imprisonment  and/or lifetime sex offender registration. Certain states have recognized the inherent unfairness of prosecuting young people for sexting or of prosecuting adults for sexting with a people  who claimed to be of age.

Recently Maine implemented a statutory scheme  that reflects this more reasonable approach of handling sexting cases. This article will describe the sexting statute update on child pornography and technology.

Child pornography in Maine

Maine statutes define child pornography under its sexual exploitation laws. A person is guilty of sexual exploitation if they enticed a minor to engage in sexually explicit conduct that the person knew or intended would be photographed. The law is fairly broad, and includes the dissemination of electronically reproduced visual images or materials depicting lewd sexual acts.  In other words,  a person can be guilty of sexting under Maine’s sexual exploitation laws.

Sexting between two minors

Teens and tweens these days use sexting as relationship currency. While in many cases, they are simply working out their sexual angst, the law can impose some very harsh, criminal sanctions. For instance, California and Oregon require sex offender registration for certain sexting offenses. In these states, an incident where a 17-year-old exchanges nude photos with a 15-year-old could result in an adult felony conviction and lifetime registration as a sex offender.

Many commentators opined that child pornography laws were not intended to apply to such situations  since many states  implemented these laws before the proliferation of laptops and cell phones. Thus like the majority of states, in 2016 Maine amended its child exploitation law to take into account these sexting matters. It provides that child exploitation (and sexting) is not a crime when:

  • the minor is 16 and older; or
  • the minor is 14 or 15 years old and the other person involved is less than 5 years older.

As a result, Maine’s laws are more liberal than other states treatment of sexting practices. For instance, in Nevada, New York, and Pennsylvania, a court may impose a treatment program for minors caught sexting. Failure to complete the treatment program or repeat offenses can lead to criminal prosecution. By comparison, in Maine, teenagers and young adults may not be prosecuted and will avoid mandatory counseling or a criminal diversion program.

Sexting between an adult and a minor

An adult sexting with a minor is a felony. More specifically, it is a Class B felony which is defined as knowingly or intentionally soliciting sexts from someone under 16 years old.   However, it does not apply if the minor is 14 or 15, and the defendant is less than 5 years older than the minor. It is also a defense if the adult reasonably could not have known that the minor was under 16 years old.

Revenge porn

Revenge porn applies to situations where an individual who possesses nude photos of someone disseminates them to another without consent. When revenge porn concerns minors, it is prosecuted under Maine’s statute prohibiting  dissemination of sexually explicit material.    The statute provides that a person is guilty of a felony if:

  • The person intentionally or knowingly disseminated, or possessed with intent to disseminate, any reproduced image of someone under 16 engaging in sexually explicit conduct.
  • It is a defense that the minor is 14 or 15 and the person is less than 5 years older.

When two adults 18 years and older are involved, revenge porn is a Class D misdemeanor. The punishment is  less serious than with child exploitation laws and the elements of the adult version of this offense are:

  • An intent to harass, torment, or threaten the depicted person.
  • Knowingly disseminating, displaying, or portraying images of a sexual act of the depicted person.
  • The depicted person can be identified in the images.
  • There is no newsworthy or medical value to the images.
  • There was no consent.

If you have further questions regarding child pornography laws, or simply need criminal legal advice and are in Portland, Maine, contact us. With 40+ years of experience, the Law Office of Richard S. Berne is uniquely qualified to effectively represent defendant in a wide range of white-collar and criminal defense cases.