Parker County Today September 2017 - Page 29

our heroes: LEGAL EAGLES Texas Law in Our Daily Lives By Timothy J. Mendolia, Attorney at Law Question: About Sexting—What is it, and when is it a crime in Texas? Answer: Almost everyone has a smart phone, nowadays. From fifth-graders to 80-year-olds, smartphones are so widespread and useful that they have become a necessity to most. While most people use their mobile phones to make calls, send texts, look at emails, scroll social media, etc., some also use these devices for sexual purposes. The rise in popularity of texting and messaging applica- tions has resulted in the rise of “sexting,” which is the transmission of sexually explicit information via mobile devices, especially among teens. One in five teens have admitted to sexting, whether sending or receiving or both, according to a survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy. Most teens intend for the message, photo or video they send to be private, but once it goes viral, it cannot be retracted. It is out there for all to see which can be damaging in and of itself to the person depicted, but it can carry criminal penalties as well. In general, sexual images of adults consensually sent among adults is not illegal, but if a sexual image of a minor is sent to another person, whether he or she is an adult or a minor, this may trigger an offense under Texas law. There are two Texas laws predominantly used to charge individuals with a crime after they have sent explicit images of minors. The first is the age old child pornography statute, Texas Penal Code, Section 43.26, which makes it a felony, and carries the potential registration as a sex offender for life, to knowingly or intentionally possess sexually explicitly visual material that depicts a child, younger than 18 years of age. With the growing popularity of sexting among teenagers, the Texas Legislature attempted to lessen the blow of “kids being kids” in the technological Vexing Truth About Sexting world in which we live, by passing Section 43.261. This section makes it a misdemeanor if such material is possessed or passed among minors, and actually has a stated affirmative defense if the minors are dating and within two years of each other, or if it was received and immediately destroyed by the receiving minor. Unfortunately, the laws overlap in some ways that may cause serious issues for minors or young adults. What about the 18-year-old senior that received an explicit picture from a 15-year-old, and then passed it to a friend, who passed it to a friend and so on . . . not within 2 years, not dating and recipient is legally an adult, 18 years old, who forwarded the picture. Depending upon the ages of the ones involved and the dating relationships or not, there could be a crime under 43.26 which is a felo- ny and can be as a high as a second degree which carries a punishment of 2 to 20 years, and sex offender reporting for life. Some may say, as it was discussed on the Texas legislature floors, that sexting has emerged due to technological advances, and that the practice is nothing more than “part of sexually curious behavior, in a world of technology-mediated adolescent development.” I would caution that such attitude towards this behavior is overlooking the serious damage it could have on a child’s life, both the sender and the recipient. I would strongly suggest that all parents owe it to their children to have the uncomfortable discussion of the ramifications of the damage that it can do to someone to have their images out there for all to see, as well as, the legal serious ramifications for themselves and others that could arise from possessing and forwarding those images. Tim Mendolia, Partner, M&P Law Office, 6900 E. Interstate 20, Aledo, Texas 76008, 817.546.4100, a general practice, including, criminal, family, juvenile, civil, real estate, business law since 1994, and since 2003 in Parker County, Texas. Tim is a member of the Texas Bar Foundation and 2017 American Institute of Criminal Law Attorneys 10 Best Atto ɹ̸(%ѕхєɽхIMѠ Q́ ܸظ ܸظЁ)iDAѥɕܰQѡ0Iɑͽ-ɱP5Qѡ(5(