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Florida’s Juvenile Sexting Law Is Ineffective

February 4, 2015

In Florida, before 2011, a teenager who “sexted,” meaning sent or received sexually explicit photos or videos, could have been convicted of a felony and forced to register as a sex offender. However, the legislature passed new legislation, which came into effect in October 2011, which drastically reduced the penalties for teen sexting. The legislation, sponsored by Rep. Joseph Abruzzo, D-Wellington, was designed “to take into account advances in technology, such as cell phones,” and to help teenagers know that their actions are wrong without the draconian punishment of labeling them as sex offenders.

The Law

Sexting is defined as a minor using “a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity . . . and is harmful to minors.” Under the new legislation, the first violation of the sexting statute is a noncriminal violation, punishable by eight hours of community service, or, if the court so orders, a $60 fine. The court also has the option to order training or instruction for the juvenile, either as a substitute for or in addition to community service.

State of Florida v. C.M.

However, the Fourth District Court of Appeals, in Broward County, ruled in a recent case that under the new sexting law, there is no way to prosecute minors for sexting. In State of Florida v. C.M., a thirteen-year-old girl was charged with a first offense of sending sexually explicit pictures to a classmate, another thirteen-year-old girl. The trial court dismissed the state’s petition for delinquency because the sexting was a first offense, and thus a noncriminal violation, rather than a delinquent act or a violation of the law. Therefore, there was no justification for delinquency proceedings. The state appealed, but the appeals court affirmed the trial court’s ruling.

The Holding

Petitions for delinquency are to be used for prosecuting delinquent acts or violations of the law, which are offenses that, if the offenders were adults, would be punishable by incarceration. The appeals court held that, because no delinquent act or violation of the law was committed, the state’s petition for delinquency was inappropriate. Thus the court cannot determine whether a noncriminal first offense of sexting has occurred through a petition for delinquency.

Further, the statute as it stands provides no other way to determine if a juvenile has committed a first offense of sexting. Thus, there is no way in which it can be determined whether a minor has committed that noncriminal first offense. It follows that, because no juvenile can be adjudicated a first offender, no juvenile can be determined to be a second or third offender, either. Only the legislature, not the court, can revise the sexting statute to add a procedure for prosecution of first offense sexting and for a determination that the first offense has, in fact, occurred. Thus, in its opinion, the court called for the legislature to craft a statute that would provide a method for appropriately prosecuting a first offense of sexting. However, until that happens, the law is effectively unenforceable.

If your child is in trouble for sexting or any similar offense, a lawyer’s advice can be valuable. Please contact West Palm Beach criminal defense attorney William Wallshein for advice and a free initial consultation.

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