Category Archive: Sexual Harassment

NUDE SELFIE WITH A MINOR NETS A 15-YEAR PRISON SENTENCE

Nude selfie with a Minor will get you a prison sentence. Learn to keep yourself safe.

The United States Court of Appeals, Ninth Circuit, 2017, upheld a 15-year prison sentence for a 45-year-old man who took nude selfies with a cell phone with a consenting 16-year-old female in the State of Washington. The girl knew and consented to the nude photos being taken with her cell phone. The selfies depicted full frontal nudity and other pornographic poses with the man and girl.

In the State of Washington a 16 year-old is legally able to give consent to a sexual relationship. A second and separate Washington statute makes a man guilty of sexual exploitation of a minor if the person aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct. The age of majority is 18 in Washington unless emancipated or legally married. Thus the man was found guilty in Federal Court of 18 U.S.C. section 2251(a) and (e), production of child pornography. He also was convicted of possession of child pornography in violation of 18 U.S.C. 2252A(a) (5) (B) and (b) (2). The court set forth, “The fact that the sexual relationship was legal under Washington law did not legitimize the production and possession of child pornography under the state or federal law. ” The court sentenced the man to a prison sentence of 15 years for the production charge and 10 years prison for the possession of child pornography. The court found federal jurisdiction because the cell phones used, the laptop the photos were transferred to, and the digital camera used all contained parts made in other countries.

To prove a conviction for production of child pornography the government was required to prove three elements beyond a reasonable doubt: (1) the girl was a minor; that is, someone under 18; (2) the defendant employed, used, persuaded, induced, enticed or coerced to the girl to take part in the sexually explicit conduct, and (3) that visual depiction was produced using materials that had been transported in interstate or foreign commerce. The court found the defendant had told the minor they looked good together when taking the selfies and that he wanted to take nude pictures of them. There was no evidence the defendant distributed, transferred the photos, or displayed them to others.

The government’s theory of the prosecution and arguments made would apply to prosecutions of anyone, adults or juveniles, snapping a photo showing consenting individuals, if one is a minor, engaged in intimacy and storing the photos on a cell phone, laptop, or camera that contains some parts that were made in other countries or across state lines.

Lives Can Be Destroyed by Risky Sexual Behavior

Risky Sexual behavior

A January 2017 article in the San Diego Union-Tribune was captioned “Naval Officer To Face Trial on Felony Attempted Rape Charges.” He allegedly sexually assaulted a fellow female officer. The article set forth he was married and has 5 children. He has been in the Navy 16 years. The service will surely dishonorably discharge him if found guilty. His five children will likely be without a father for a number of years, if convicted, while he serves prison time. Throughout my legal career I have represented men like him. But this is not about him. It is about the wake of destruction and hurt he has caused.

Service men/women who commit felony offenses will be dishonorably discharged from the service. If they do not have their 20 years in for retirement, they and their dependents lose everything. The service does not provide any source of income to their wives/husbands. The family loses their health benefits. A service man/woman could have honorably done their job for 19 years but it all goes out the window if they get kicked out of the service.

If you believe that any of us is not capable, under the right circumstances, of engaging in some taboo or criminal behavior, I must respectfully disagree with you. Being an attorney for over 46 years dealing with adults and juveniles engaging in risky/criminal behavior I have seen it all. I have represented a number of juveniles charged with rape, sexual assault, domestic violence, lewd conduct with younger children, making terrorist threats and many other type offenses.

Parents must be aware and properly supervise what their children are doing, both at home, at school, on the internet and social media, and know their friends. Do not fool yourself that your great kid would never engage in harmful behavior. As the Navy Commander displayed by putting himself in the wrong place at the wrong time, even well-educated adults can engage in extremely risky and family-destroying behavior.

I am amazed how many parents do not know the laws concerning the age of consent for sexual acts between teenagers. They do not know if their teenagers are engaging in sexual intercourse. This type of behavior can lead to very serious charges being filed against your teenager that can have lifelong consequences. If you think your parental job is over when they graduate from high school, your young adult needs as much if not more counseling/warning of the dangers they are facing with unlawful sexual behavior and acts in college. The federal government is coming down very hard on college students who allegedly commit sexual abuse, assault, or engage in relationship violence in violation of Title IX. Unless the colleges very aggressively pursue these types of charges, they can lose their federal funding. The federal government has even put into the regulations that an alleged victim is totally immune when making false allegations and cannot be disciplined and sued for making up lies about their alleged assault/attack. Not only does your young adult have a good chance of being expelled from their college, but they can be criminally prosecuted and face mandatory prison time.

I strongly recommend parents use the amended Consent to Engage in Sexual Acts form to discuss with their teenagers/family members what they have to be very careful about before engaging in risky/criminal type behavior. It discusses the age of consent to engage in sexual acts, acquiring signed consent, intoxication, safe words, birth control, and sexual diseases. Start parenting/counseling your children on these subjects when they enter middle school. Sexting and engaging in unlawful sexual conduct is taking place by middle schools students.

SEXTING REQUEST TO A MINOR UNDER THE AGE OF 14 CAN LEAD TO VERY SERIOUS CHARGES

SEXTING REQUEST TO A MINOR UNDER THE AGE OF 14 CAN LEAD TO VERY SERIOUS CHARGES

Your teenager asks a girl or a boy under the age of 14 if she or he will text a nude photograph of themselves. Your teenager sends the girl or boy a nude picture and requests one in return. The girl or boy under the age of 14 does not send a return nude photograph.

Your teenager has potentially violated the following laws in California:

Penal Code section 288 (a)/664 attempt to commit a lewd act on a minor under 14. This is a felony offense that can carry up to four years in custody for the attempt;

Penal Code section 288.2 (a), distributing lewd matter to a minor. A minor for this offense is anyone under 18. This can be a felony offense that carries up to 5 years prison or a misdemeanor;

Penal Code section 288.3 (a) contacting a minor (under 18) to engage in lewd or lascivious behavior. This is a felony offense punishable by imprisonment for the term prescribed for an attempt to commit the intended offense. An attempt to commit lewd or lascivious behavior carries for an attempt a potential sentence of four years in custody;

Penal Code section 313.1 (a) distribution of harmful matter to a minor (under 18). This is a misdemeanor and carries up to one year in custody;

Penal Code section 647.6 (a) (1) annoying or molesting a minor (under 18), a misdemeanor. This offense carries up to one year in custody;

Penal Code 311.3 (a)/664 attempted exploitation of a child (under 18), a misdemeanor. This offense carries up to six months in custody for attempted exploitation;

Penal Code 311.1 (a)/664 attempted possession of child pornography (under 18) sent or brought into this state (under 18). This can be a felony which carries up to 1.5 years in custody or a misdemeanor for which the accused could serve up to six months in custody;

Penal Code 311.11 (a)/664 attempted possession of child pornography (under 18). This can be a felony which carries up to 1.5 years in custody or a misdemeanor for which the accused could serve up to six months in custody;

In a recent case all the above charges were filed. Arguments that these were merely texts, that there was never intention the minor touch themselves, they would not be present when the minor took a picture of themselves, and they cannot be charged with attempted lewd conduct and should only be charged with a lesser offense, were all denied.

In the above case three girls under the age of 14 were contacted first on their Instagram accounts by friendly messages. They were requested to use Kik, a social text messaging application, to text one another and send nude pictures of themselves. Snapchat is also an app teenagers use to exchange nude pictures of themselves.

I cannot stress enough to parents that providing smart phones to their teenagers can very likely result in some of the above behavior. All but one of the above charges would be applicable if the request was made of any minor under the age of 18. Girls are becoming just as aggressive as boys in sending nude pictures of themselves to boys and vice versa. This conduct is starting at an early age. Some minors have been requested to take nude photos of their younger siblings to also send. This is not boys will be boys and girls just to want to have fun type behavior. This is serious misbehavior. It is illegal conduct. It will likely lead to further in-person illegal sexual misbehavior.

EFFECTIVE JULY 1, 2015, NEW REVENGE PORN LAWS

Effective July 1, 2015 a new revenge pron law includes the use of selfies. JuvenileLawCenter.com

Effective July 1, 2015, California Penal Code section 647 (4) was amended to include distribution, without consent, of videos and pictures of ones intimate body parts, including but not limited to “any portion of the genitals and in the case of a female, any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing.” California Civil Code section 1708.85 was enacted effective July 1, 2015. It creates a civil private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes the intimate body parts as does the criminal section as explained above. Both laws also apply to “selfies”, meaning when the photograph or recorded image was consented to and done with the consent of both parties to the photograph or recorded image when taken. Previous versions of the criminal law did not apply to “selfies”. It has to be proven that the offended party did not consent to the distribution of the photograph or recorded image.

The civil law permits monetary damages, injunctive relief including the right to seek a restraining order from further distribution of the material, attorney fees and costs for their attorney, and the right to use a pseudonym when filing their case. If the defendant is a minor his parents can be held civilly liable for the torts, which are civil wrongs, of their minor. There is a monetary cap on the amount of the parents’ financial exposure if they are being held liable only because they are the minor’s parents.

When prosecuted criminally, the victim is entitled to restitution. They can recover medical expenses, lost wages, attorney fees for prosecuting the civil case and any attorney fees incurred to obtain injunctive/restraining order relief.

It is important to discuss these new laws with your minors. Minors regularly are engaging in sexual behavior covered by these laws in contravention of the laws. It is common for pictures of one’s private areas of both sexes to be “sext”. Additionally, minors want to film themselves in “selfies” when they engage in sexual behavior. When these photos and videos get distributed to others when not agreed to, the distributor violates both the criminal and civil laws mentioned above. They expose themselves to criminal penalties including potential custody, fines, probation, and restitution for expenses. When prosecuted civilly, the plaintiff can also recover pain and suffering and emotional damages. The parents of a minor are also financially liable for the intentional wrongs of their minors.

Penal Code section 647 (4) as mentioned above is a misdemeanor and carries up to 6 months in jail. Depending on the facts of their case, the minor could also be accused of felony offenses. Adult defendants have been recently prosecuted for felonies involving revenge porn cases. Recently a man was sentenced to three years in custody where his website solicited users to post nude or other intimate photos of others without their consent. He plead guilty to extortion and attempted extortion. In another case, a hacker was accused of coordinating the hacking of more than 300 email accounts and stealing victims’ intimate photos. Another adult was recently convicted of 27 felony counts including identity theft and extortion. He ran the website UgotPosted.com. He received an 18 year jail term.

ENTICING SOMEONE UNDER THE AGE OF 18 TO ENGAGE IN SEXUAL ACTIVITY CAN RESULT IN A MANDATORY TEN-YEAR SENTENCE

lost

The Ninth Circuit Federal Appeals court just upheld the mandatory minimum sentence of a 45-year-old man for the attempted enticement of a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” He was convicted of one court of 18 U.S.C. section 2422(b). Congress enacted the Telecommunications Act of 1996 to specifically prohibit the enticement “using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdictions of the United States knowing persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.” Since the enactment of the Act, the United States Congress has increased the penalties for this offense three times. The last time was in July 27, 2006, to “life in prison and increasing the mandatory minimum to ten years.”

This man’s offense took place in Oregon. Under Oregon state law his conduct would be a misdemeanor offense. How can he also be charged under federal law? If one commits a state offense which also could be a federal offense, one could be prosecuted in either jurisdiction (Federal or State) or both. More and more possession of child pornography charges are being prosecuted in the Federal courts because the judges in the Federal courts, following Federal Sentencing Guidelines, are imposing lengthy prison sentences for these offenses. It is not that the State courts don’t take these offenses seriously, but most of these type offenders are first time offenders with jobs and families, and are very likely to do very well on probation and not repeat the same offense again. Offender specific therapy is very successful and, for the safety of the community, they don’t need to be placed in prison for years at taxpayer expense. Congress wants to impose lengthy prison sentences, despite the background of the defendant, for these type offenses.

What did this man do? He approached a 16-year-old girl he had seen at his kid’s school in a store. He told her he thought she “looked nice.” He sent her a “friend” request on Facebook. The girl wisely told her father. Her father reported this to the local police. The FBI got involved and had one of their agents pose as the girl on Facebook. An instant message account was established on a Yahoo! email account. The defendant sent messages enticing the girl to have sex with him. Eventually a meeting was set up where the defendant arranged to meet the girl at a train station. The defendant went to the train station to meet her and was arrested. The girl did not go to the train station. When arrested he had alcohol and condoms on his person. He was charged with one count of online enticement of a female minor. The defendant had been reported before to the local police for sending sexually explicit messages to another 16-year-old girl and to an 18- year-old girl, but he was not prosecuted for those incidents.

The defendant can be any age. He or she could be a juvenile or over the age of 18. How many juveniles are using the internet, instant messaging, texting, using Facebook and other social media sites to entice and solicit sexual activity? People say things by text, on Facebook, in email and on social media sites they would never say in person. If your minor under the age of 18 was Federally charged for this offense, they would be tried under the Federal Juvenile rules and laws. They probably would not be facing a ten-year mandatory prison sentence but could face severe custodial and other sanctions. If they are 18 or over, they are facing the same penalties as this defendant.

WHAT CAN PARENTS DO?

1. Talk to your minors. Talk to your spouse or significant other and discuss cases like this. The defendant in the above case has a family. He is now facing a minimum sentence of ten years in a Federal penitentiary.

2. Supervise your minors texting, their Facebook page, Instant Messaging and other social media sites. Put parental controls in place to block sexual material. Please review our prior blogs on these subjects.

3. Do not permit your minors to restrict you from having access to the above. If they will not permit you to regularly review and supervise what they are texting, sending and posting, don’t allow it or pay for it.

 

CompUSA TURNS IN A 76-YEAR OLD MAN FOR CHILD PORNOGRAPHY

CompUSA

A 76-year old man took his computer into CompUSA for repair. Technicians discovered folders and subfolders with suspected child pornography. The technicians called the police. The police requested the technician show them the thumbnail images they observed. The images depicted obvious sexual activity between adults and children. The police obtained search warrants for the residence, office and two vehicles. After his arrest, his estranged wife called the police and told them the man had a home office at their shared residence and she had found items on it which she believed to contain child pornography. With her consent, the police secured the computer, some DVDs, and other items from this home office.

The defendant filed motions to suppress the warrantless search of his computer at CompUSA. The court denied the motion. He had voluntarily turned over his computer for repair. The Appellate Court ruled, “(t)he Fourth Amendment proscriptions on searches and seizures are inapplicable to private action…the Fourth Amendment does not prohibit governmental use of the now non-private information.” The defense further argued that the detectives needed a warrant to ask the technician to enlarge the thumbnail images. The court said this was irrelevant since the technician had viewed these images already and any expectation of privacy was extinguished. The defense further argued the estranged wife had neither actual nor apparent authority to consent to a search of the defendant’s office in their home. The facts were that the estranged wife had common authority over the house, including the home office. She could consent and allow the police to search.

The federal court sentenced the defendant to 8 years (96 months) in federal custody. He suffered from diabetes, hypertension, heart disease, thyroid disease, and kidney disease. He was taking approximately 22 medications daily. The court rejected the defendant’s request to a lifetime of supervised release, home confinement, and community service. He also requested to pay $100,000 in restitution.

This man had turned to viewing pornography for his sexual stimulation. In the course of it, he viewed a lot of child pornography. See our blog on how a lapse of judgment can cause some serious consequences. Lessons to be learned:

1. Do not view any child pornography–no matter how curious you are or fake you think it is. Dire consequences will follow.
2. Even if you delete something you have viewed, it is still on your hard drive in a folder
or subfolder. The police, computer technician, and other tech savvy person can bring up anything still stored on your hard drive.
3. Do not possess anything illegal. If you think there is something illegal on your computer, get a new hard drive or a new computer. Make sure you don’t put something illegal on it in the future.
4. If you have viewed suspected child pornography, do not take your computer into a repair store. Technicians will report you to the police if they see suspected child pornography.

WHAT GETS MIDDLE SCHOOLERS RECOMMENDED FOR SUSPENSION AND EXPULSION

Screen Shot 2013-11-09 at 12.38.41 PM

1. Sexual misbehavior – Sexual harassment will be sure to warrant a suspension and possible recommendation for expulsion. Seventh and Eigth grade boys and girls are into sex talk. They generally start their conversations on Facebook, Instant Messaging, Instagram, texting and other social media sites. Girls want to encourage the attention from boys so they tease, sext or do other things to get the boy’s interest. Boys can’t wait to talk with the girls and admire what they send them in their photos, texts, and messages. Generally these are boys and girls that attend the same school.

Sexual misbehavior at school is a big “No.” A boy passing a sexual note to a girl will be assessed as “sexual harassment.” The boy will be suspended. Depending on the gravity of what occurred that could turn into a recommendation for expulsion. A boy and girl making out at school behind one of the classrooms is bound to lead to a suspension for sexual harassment for the boy even if the conduct was consented to by the girl. When both the boy and girl are questioned by the vice principal for their conduct, in most cases the girl will say the boy went too far and she did not consent to his sexual touching. This sort of conduct will likely also lead to school police involvement and possible juvenile court charges.  It is not uncommon for seventh and eighth graders to engage in more intimate sexual acts in one of the bathrooms. Most boys and girls of this age view certain sexual acts as not sexual intercourse. The girls can be as equally aggressive as the boys in consenting to and participating in the conduct. Should they be discovered or questioned about their actions, the girl will generally deny consent and the boy will be recommended for expulsion. The law says consent is not a defense to sexual acts with minors under the age of 18. See my prior blog on “Sex Between Minors“.  The police will definitely be called and the minor arrested and either put in custody or referred for prosecution.

2. Threats to kill or cause serious bodily injury. Another way to get a minor suspended and recommended for expulsion is to make a threat on Facebook, by text, Instant Messaging or on a social media site to kill or cause serious bodily injury to another student or an administrator at school. The threat can be made from home and sent to another student by way of the internet. These type of threats are taken very seriously by the school and the authorities. I can guarantee you there will be an immediate suspension pending expulsion. The police will be at your home very soon after they are first notified. They will thoroughly search your home for weapons. Your son or daughter will be arrested. It is not a defense that your son or daughter is being bullied at school, is being threatened, is depressed, has a mental disability, or is just impulsively acting out and does not intend to actually hurt anyone.

3. Drugs/Providing Prescription Medication. I talk about this in my prior blog dealing with high school suspensions and expulsions. The same information applies to middle schoolers. Do not send your minor to school with his or her prescription medication. If your minor ends up providing it to another student, even though no money is exchanged or just to be friendly that is the same as sales of an illegal drug. Under no circumstances have any illegal drugs, seeds, spice or anything else which is not allowed by the school for students to possess. Your minor needs to make sure none of these things are in their backpack, pockets, and clothing. They are not to temporarily hold illegal drugs while another student is being investigated to help out their friend. These types of offenses will lead to suspensions and a possible recommendation for expulsion.

4. Weapons. Boys will often go to school and have a knife or other weapon in their backpack or in their clothing. Quite often the weapon has been mistakenly left in their belongings and they did not intend to take it to school. This is not a defense. Under no circumstance allow your minor to go to school with a gun, a look-alike gun or a BB gun, sling shot, brass knuckles, martial arts weapons, pepper spray, lighter, matches, or anything else which could be used as a weapon. Your minor needs to be responsible to not take these items to school and not be given these items at school to hold for another student or to take home. I can guarantee you another student will tell on them. If substantiated, your minor will be suspended and possibly be recommended for expulsion.

5. Bullying/Fighting. Bullying is being taken more seriously by the schools than in the past. Administrators are under a lot of pressure to get rid of the students who are bullying other students. Impress on your minor not to bully, discriminate racially or taunt with sexual orientation slurs. Your student will end up being suspended and referred for possible expulsion.

We recommend parents frequently supervise their minor’s Facebook, Instant Messaging, texting, and other social media sites.

Be observant as to what is in your minor’s room at home. Do they have a lot of cash that you don’t know where it came from? Are they using drugs?

Little problems become big problems very quickly.

Please read all our blogs to assist you with avoiding behaviors which could lead to suspension and/or expulsion.

SEX ZWISCHEN MINDERJAEHRIGEN IN DEUTSCHLAND (SEX BETWEEN MINORS IN GERMANY)

Sex Between Minors in Germany

We have had inquiries as to what the laws are on sex between minors in other countries. Review our blog regarding the laws in California and compare them with those in Germany. Jochen Wurster, an attorney who is specializes in criminal and juvenile law in Bremen, Germany, contributes the German laws to this blog. While completing his law training requirements, he interned with our office. His contact information is Jochen Wurster, Rechtsanwalt-Fachanwalt fur Strafrecht, Gerhard-Rohls-Str. 59, 28757 Bremen, Germany. His email is info@ra-wurster.de. His website is www.ra-wurster.de. He is fluent in English.

“In Germany, the laws regarding sex between minors differentiates between the age of the accused and the age of the alleged victim. In general, you can only be accused and convicted when you are at least 14. Otherwise, the case will be dismissed but the youth office will be informed. If the minor is between 14 and 18, the minor is responsible, but will be convicted by the terms of the juvenile criminal law. The juvenile criminal law stresses the education of the minor rather than the penalty.

If you are between 14 and 18 and have sex with a juvenile between 14-18, it is only illegal if you use violence. If you are older than 18 and have sex with a juvenile, it is not illegal to have sex if both agree. If you are older than 21 and have sex with a person younger than 16, it is illegal if you abuse the sexual self-determination of the victim. Self-determination means that the inability of the victim to properly consent is presumed if the victim is 14 or 15 but it can be refuted. If the victim is older, 16 or 17, the inability is not presumed and must be proved to the court.

If an adult has sex with a child under the age of 14 by penetrating the body, it is severe sexual abuse and the conviction will be at least 2 years. If the accused is a juvenile between 14 and 18, the penalty is only at least 6 months. It is regarded as simple sexual abuse. It is illegal to have sex with a child under the age of 14 if you are 14 or older.

If a 15-year-old boy would rub the breast or vagina of a 8-year-old girl, even if she is a relative, with sexual intent, it would be simple sexual abuse. Juveniles would get a sanction according to their education needs. The same would apply if a boy would masturbate in front of the same 8-year-old girl. There are no sex registration laws in Germany for juveniles or adults.”

What can parents do?

1. Discuss our blog on the laws for Sex Between Minors in California with your son and daughter. Even though sex education classes are mandatory in California schools, the laws regarding sex between minors are not taught.

2. If your minor has or is engaged in sexual acts with another minor, first and foremost contact an attorney who has expertise in this area. Why not a therapist? A therapist or counselor is required to report suspected sexual abuse. An attorney is not so required. It is important to consult with an attorney on how to stop the illegal acts occurring. It is also important that the parents of both minors work as a team as to how to deal with what is occurring between the minors to minimize potential juvenile, social and criminal law issues.

3. Contact your California state representatives to change the laws on sex between minors. We don’t have the statistics but we believe a majority of high school students will have engaged in illegal sexual acts between minors before they graduate from high school. It is highly likely they will have committed felony type offenses. The laws in the State of California on sex between minors need revision.

 

Email us and tell us your comments. If you would like us to do a blog on a particular subject, please let us know. Share experiences you may have had that could be helpful to others. Visit our educational videos on You Tube at JuvenileLawCenter.com or McGlinn & McGlinn, Attorneys at Law.