Is Sexting Considered Child Pornography in Virginia?

The widespread prevalence of cellphones has brought about serious questions about transmitting questionable sexual material on them and where sexting can step over the line into committing an illegal act. If you or a family member has been accused of sexting or another child pornography offense, call today and schedule a free consultation with one of our Virginia child pornography lawyers.

Can Sexting Get you Charged with Child Pornography

Sexting may be considered child pornography if it depicts a sexually explicit image of a person under 18. In fact, a person can have that on their phone without transferring it and that is still considered possession of child porn.

However, if you send one of those images through electronic means to someone else, then you’re distributing it. So, it quickly becomes a very serious type of case even though it sounds relatively commonplace. Once you decide to take that image, or download that image, or possess that image, that’s one thing. But if you decide to send it to your friend, then it escalates into a much more serious case.

Teenagers and Child Pornography

One of the things that young people often do not consider when sharing these types of images with their friends is that it is actually a crime, even if the image is of someone they know or someone of the same age as them. It may not seem as though it is child pornography, however, under Virginia law, if the person in the image is under 18 then it is considered child pornography.

Every teenager, or the majority of teenagers, have cellphones and access to social media. Those types of devices are everywhere so it is very easy to take a photograph of somebody or a video of somebody and automatically you have that on your phone. If it depicts sexually explicit material and you know about it because you took the image, then you could be charged with a felony.

The fact that technology has made this so easy to possess, creates a real danger for young people because they often do not think through the consequences of things before they act as much as adults do. More importantly, they may not have experience with the law and can be unaware that this is even considered a crime.

Unfortunately, the government does not always see it this way, and kids can end up facing felony charges and sex offender registration for life.

Constitutional Issues Regarding Cell Phones

One big issue in sexting cases is the police seizing cellphones and then searching the cellphone for evidence because they think they do not need a warrant. In fact, they do need a separate warrant to search the cellphone to get content from it. That is an important issue in these cases because for a long time this was an undecided or gray area in the law.

For example, let’s say when you arrest an individual, you have the right then to search them and then to arrest. Well, a lot of people carry cellphones on them. So, when they are arrested and they are searched, a lot of officers were taking that opportunity, thinking they had authority, to then search the person’s phone.

In reality, however, law enforcement does not have this power. They do not have this blanket authority to search someone’s phone just because they arrested somebody. They need a separate warrant, which is a unique issue that relates to cellphones that can come up in sexting child pornography cases.