Frequently, online communications with strangers develop into texting and exchanging intimate photos. Although generally not an issue between adults, potential issues may result from sending a nude photo to a minor.
Once you realize that you have been communicating and exchanging intimate photos with a minor, it is important to stop all further communications with that person and retain experienced counsel.
What Laws Apply to Sending a Nude Photo to a Minor?
Sending a nude photo to a minor or engaging in sexual conversations can be prosecuted under both New York and federal criminal law.
New York Criminal Laws
Under New York Penal Law, there are a number of criminal charges that can apply to situations involving sending a nude photo to an underage person.
Endangering the Welfare of a Child
One of the charges that can apply to sending a nude photo to a minor is Endangering the Welfare of a Child. This charge is codified in New York Penal Law Section 260.10. Under New York Penal Law 260.10, it is a crime to knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than 17 years old.
Interestingly, the statute requires that in order for you to be convicted of Endangering the Welfare of a Child, your actions must be “knowing.” That is to say that if you sending nudes to someone you reasonably believe to be of age, you are not “knowingly” endangering the welfare of a child. Thus, you may have a viable defense to the Endangering the Welfare of a Child charge.
New York Endangering the Welfare of a Child is a Class “A” Misdemeanor and is punishable by up to 1 year in prison. Endangering the Welfare of a child is not a SORA registrable offense.
Disseminating Indecent Materials to Minors
Another New York charge that would apply to sending a nude photo to a minor is called Disseminating Indecent Materials to Minors in the First Degree. This charge is codified in New York Penal Law Section 235.22. Under Section 235.22 of the New York Penal Law, there are two elements, which need to be met for a prosecution of sending a nude photo to a minor.
- First, under Penal Law Section 235.22(1), using a computer to initiate or engage in a communication with a minor, which contains in whole or in part, either in words or in images actual or simulated nudity, sexual conduct, or sado-masochistic abuse, which is harmful to minors.
- Second, under Penal Law Section 235.22(2), doing so with intent to invite or induce a minor for sexual conduct or contact.
New York’s Disseminating Indecent Materials to Minors is a Class “D” Felony. As such, this charge is punishable by up to 2 1/3 to 7 years and prison. Additionally, there will be a 10-year period of post-release supervision imposed. Furthermore, this charge is subject to registration pursuant to New York Sex Offender Registration Act (commonly abbreviated “SORA”).
Federal Criminal Laws
Transfer of Obscene Materials to Minors
Under federal law, sending a nude photo to a minor may be prosecuted under 18 U.S.C. § 1470, which is called the Transfer of Obscene Materials to Minors. Under Section 1470 of Title 18 of the United States Code, it is a crime to knowingly use mail or any other means of interstate or foreign commerce to transfer or attempt to transfer obscene materials to anyone who has not reached the age of 16.
This charge is punishable by up to 10 years in prison, or a fine, or both imprisonment and a fine.
Obscene or Harassing Communications
Other federal charges that may apply to sending nude photos to a minor are codified in 47 U.S.C. § 223. (A) and 47 U.S.C. § 223 (B), titled Obscene or Harassing Communications.
47 U.S.C. § 223. (A) prohibits knowingly using a telecommunications device to make, create, solicit or initiate transmission of a comment, request, suggestion proposal or an image which is obscene or is child pornography.
47 U.S.C. § 223 (B) prohibits knowingly using a telecommunications device to make, create, solicit, or initiate transmission of any comment, request, suggestion, proposal, image or other communication which is obscene, knowing that the recipient of the communication is under 18 years of age.
Both of these charges are punishable by up to 2 years imprisonment, a fine, or both imprisonment and a fine.
Up to What Age is a Person Considered a Minor?
Different states have different legal definitions of who is considered a minor. Under New York State Laws, persons under age 17 are considered to be minors. But under New Jersey State Laws, anyone under age 18 is considered a minor. Under federal laws, individuals under age 16 for some charges and under age 18 for other charges are considered minors for the purposes of dissemination of obscene materials.
Scams Involving Sending a Nude Photo to a Minor
Scams involving sending a nude photo a minor are very prevalent. While you may be frantically Googling “Can I get in trouble for sending a nude photo to a minor?” or “Can I be arrested for having a sexual conversation with a minor,” the minor that you were supposedly communicating with is not a real person.
Usually, these scams go something like this:
1. You Match With Someone on a Dating App
First, you match with someone on a dating app or through some social media. The important part is that you do not personally know this individual, or have friends in common who know him/her/they in real life. For this hypothetical, let’s call this person Jamie. Jamie’s profile states s/he/they is 23 years old. Jamie’s pictures also look like s/he/they is 23 years old. Under state and federal laws, a 23 year old is considered an adult.
2. You Start Communicating
After matching, you start communicating with this person, called Jamie in our hypothetical example. Before you know it, you are spending a lot of time talking to Jamie. Eventually, the conversation becomes sexually explicit and Jamie requests nude photos of you.
3. You Provide Nude Photos
At the request of the person (called Jamie in our hypothetical example), you provide nude or sexually explicit photos of yourself. After all, you believe you will soon be meeting up in person with Jamie to spend time together.
4. Person Disappears
After sending a nude photo or engaging in explicit conversations, the person you were communicating with disappears. No matter how much you try to get in touch with them, you can’t get an answer back. Their profile may disappear and you may find out that you are blocked via all forms of communication.
5. Dad, Grandma, Therapist or “Police” Call You
The last step in this scam is receiving a call from dad, grandma, therapist or “Police” letting you know that the person you were communicating with is a minor. That is, they aren’t 23 years old like they claimed on their profile, but they are under 17 years old.
Additionally, dad, grandma, therapist or “police” make with any of the following demands:
- Money for the minor’s therapy;
- Money not to go to the police;
- Money not to tell your family, job, friends etc;
- Money or Apple Giftcards not to arrest you.
If any of these requests are made, you are being extorted and you need to get an attorney. Real police officers or detectives will never ask you for money or gift cards to avoid arrest. Instead, they will be asking you to come to the precinct to surrender yourself.
Politely take down the person’s contact information and let them know your attorney will be calling them back. Then, schedule your consultation with us. Together, we will develop a plan and figure out how to deal with the extorter.
Contact Top Rated Defense Attorneys
If you or your loved one has concerns about getting in trouble for sending a nude photo to a minor, or if you believe you are a victim of an extortion scam relating to communications with a supposed minor, you need counsel immediately. While potential criminal penalties are severe, there may be ways to get the charges reduced or dismissed. Contact us and schedule your consultation today.