Decades-old Teen Sexting Criminal Laws include: Possessing a Sexual Performance of a Child, Penal Law Section 263.16; Promoting a Sexual Performance, Penal Law Section 263.15; and Disseminating Indecent Material to Minors in the First Degree, Penal Law Section 235.22. All 3 crimes are a felony. All 3 laws have an age requirement, less than 17 years old or 16 years old, depending on the crime. Whereas, under federal Teen Sexting laws a minor is defined as less than 18 years old.
In 2019, New York passed a Revenge Porn Law, Unlawful Dissemination or Publication of an Intimate Image, Penal Law Section, Penal Law 245.15. Finally, New York City also has a Revenge Porn Law, Unlawful Disclosure of an Intimate Image, New York City Administrative Code Section 10-180. Neither law has an age requirement.
The Intimate Image in question can be of a person of any age, minor or adult. New York State and New York City’s Revenge Porn Laws are a misdemeanor.
While Teen Sexting charges are serious, a criminal case does not mean there will be a conviction. And a Teen Sexting investigation does not mean that there will be an arrest and prosecution. Every case is different and depends on the specific allegations.
Defenses to New York Teen Sexting Charges
One of the most important things to know about Teen Sexting charges is that there are important defenses to the felony charges regarding a mistaken belief about the age of the minor. In some cases, Teen Sexting charges involve a lie or misrepresentation about a person’s age. Whether on a dating app like Tinder or Grindr or through social media apps like Instagram, Snapchat or TikTok, a person who claims to be at least 17 or 18 years old and turns out to younger may establish a defense to Teen Sexting charges.
There are 2 important defenses that apply when a minor lies about his or her age. The first is the absolute defense of a reasonable effort to ascertain the true age of the minor, which applies to Disseminating Indecent Material to Minors in the First Degree, Penal Law Section 235.22.
The second is an affirmative defense of a good faith reasonable belief that a person was either older than 16 or 17 years old depending on the charges, which applies to Possessing a Sexual Performance by a Child charges and Promoting a Sexual Performance by a Child charges.
The difference between an absolute defense and an affirmative defense is who the burden lies with. When a defense is absolute, the burden of proof is on the prosecution to prove the element of the crime beyond a reasonable doubt. Thus, an absolute defense negates a crime. When a law has an affirmative defense, the burden of proof is on a person charged to show proof to establish the defense. But, the burden of proof of an affirmative defense is a preponderance of the evidence, which is a far lower standard than proof beyond a reasonable doubt.
Reasonable Effort to Ascertain the Age of a Minor in New York
The defense of a reasonable effort to ascertain the age of the minor applies to Disseminating Indecent Material to Minors in the First Degree charges. Under Penal Law Section 235.22,
Disseminating Indecent Material to Minors in the First Degree involves allegations of an electronic communication with a person who is less than 17 years old that depicts or describes in words or images Actual or Simulated Nudity or Sexual Conduct and an invitation for Sexual Conduct or to create a Sexual Performance.
It is important to note that a person can be charged with Disseminating Indecent Material to Minors in the First Degree even if photos or movies do not have Nudity or Sexual Conduct. Descriptions of Sexual Conduct in words could lead to with Disseminating Indecent Material to Minors in the First Degree charges if there is also an allegation of an effort to meet the minor to engage in Sexual Conduct.
Penal Law Section 235.23(3) states that in any prosecution for Disseminating Indecent Material to Minors in the First Degree “it shall be a defense that: The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the Minor.” Whether or not a person makes a reasonable effort to learn the age of a person who turns out to be a minor depends on the facts that are unique to every case.
If the means of connection was a dating application like Tinder or Grindr, to name just 2 of dozens, then there is already a reasonable belief that the person they connect to is at least 18 years old. That’s because the minimum age to use such dating apps is 18. The age of a user on a dating app is even posted on profiles.
However, social media applications like Instagram, TikTok, Snapchat and Facebook have a lower age requirement of 13 years old and ages are not typically posted on a user’s profile.
Even when a person’s age is posted on a profile on a dating app, cases of Teen Sexting often involve a person trying to learn or to confirm a person’s age. In such cases, the person charged or who is under investigation for Teen Sexting often asks for the grade of college year of the person he or she is communicating with.
In other cases, people facing Teen Sexting charges often ask for a photo of a government-issued identification, which turns out to be forged or phony. In such cases, the defense of a reasonable effort to learn the true age of a minor would apply because of the actions taken by the minor.
Good Faith Reasonable Belief of the Age of a Minor in New York
The defense of a good faith reasonable belief of the age of a minor applies to Possessing a Sexual Performance by a Child charges, Penal Law Section 263.16, and Promoting a Sexual Performance by a Child, Penal Law Section 230.15. The crime of Possessing a Sexual Performance by a Child applies to people who are less than 16 years old. Whereas, the crime of Promoting a Sexual Performance by a Child applies to people who are less than 17 years old.
Under Penal Law Section 263.20(1), is an affirmative defense to both crimes “the defendant in good faith reasonably believed the person appearing in the performance” was either at least 16 or 17, depending on the Sexual Performance charge.
Whether or not a person has a good faith reasonable belief depends on the circumstances that are different in every case. As explained above, Teen Sexting charges often involve meeting through a dating application or on social media. The terms of service of dating apps have a minimum age of 18 years old and display the age on a person’s profile. However, the minimum user age on social media is 13 and ages are not usually displayed.
If people connect through a dating app then the good faith reasonable belief about a minor’s age begins with the terms of service and the age posted on a user’s profile, which cannot be below 18 years old. On social media, as well as on dating apps after 2 people connect, the most common evidence of a person’s age is the high school grade or year of college. High school seniors are typically at least 17 years old and high school graduates are typically at least 18 years.
So, when a person represents that he or she is a high school senior or is attending college there is a reasonable belief about a person age as at least 17 years old. However, the reasonable belief is qualified as being in good faith. So, if a person represents that he or she is at least 18 years old, but there is information or evidence to the contrary, the reasonable belief could be negated.
Speak With a Teen Sexting Lawyer in NYC Today
If you or a loved one is charged with, or under investigation for a Teen Sexting-related crime in New York City, we’re here to help. There are important defenses that a knowleagble Teen Sexting lawyer can establish to end a criminal prosecution or investigation.
Contact The Law Firm of Andrew M. Stengel
Contact us via the live chat below, through our contact form here, or call us at (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.
Our offices are located at 11 Broadway, Suite 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.
