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