New York Teens Can Sex Without a Felony But Can't Sext

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The recent news of the arrest of two 14-year-old boys on Long Island for allegedly filming sex acts and then distributing the footage electronically follows closely on the heels of what was described as a sexting ring in Colorado. The Long Island high school students were charged with felonies, disseminating indecent material to minors, which is a registerable sex offense, and promoting a sexual performance by a child--both class D felonies. Many more students who received the video via cellphone were suspended.

As reported, the alleged acts on Long Island go beyond sexting, and the full facts are not yet known. It is probably not a surprise that teens sext each other, but were the felony crimes meant to apply to teens?

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According to news reports, the Long Island teens were arrested for two felony crimes. First, for Promoting Sexual Performance of a Child, Penal Law Section 263.15, which reads: "A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age. And, second, Disseminating Indecent Material to Minors in the First Degree, Penal Law Section 235.22. The crime has two prongs: disseminating graphic images to a minor depicting nudity or sexual conduct and a luring prong that requires inviting, or inducing a minor to engage in sexual activity.

In New York, it is worth noting, that 16 is the age of criminal responsibility, except for some particularly heinous crimes, so the Long Island cases will be handled in Family Court. In addition, the age of consent in New York is 17 because New York deems those under 17 to be incapable of consenting to sex.

The law criminalizing the promotion of sexual performance by children was enacted in 1977. The law was enacted to stem the flow of commerce from the "burgeoning industry" of child pornography. The law was revised in 2000 when the Sexual Assault Reform Act raised the age of a child from less than 16 to less than 17 years old.

New York created the crime of disseminating indecent material to minors in 1996 when the Internet was in what Slate called the Jurassic Web and one was likely to hear the intoned computer voice say "you've got mail" when logging into their AOL browser. The time also saw the rise of Internet chat rooms with sexual predators lurking. In response, states, including New York enacted a raft of laws to deal with the rise of virtual pedophilia. The New York State legislature described the justification for enacting laws against dissemination of indecent material to minors as:

Law enforcement agencies around the nation are becoming increasingly alarmed at the growing use of computer networks and other communications by pedophiles. Several cases have come to light wherein a pedophile has traveled clear across the country to have sexual relations with a minor initially contacted and engaged through various computer networks.

Typically, the pedophile, posing as a minor, makes contact, wins the confidence of the minor and slowly begins to draw the victim into discussions of sex and sexuality. In several cases the pedophile has induced minors to take nude photos of themselves and send these to the abuser, who may or may not reveal that he is not what he seems. Sometimes the pedophile will pose as a young male; other times as a female... whatever it takes to gain the trust of the victim.

Remember the Sexual Reform Act mentioned above? Well, that law, in addition to making date rape drug GHB a controlled substance, and creating the crime of Forcible Touching, created affirmative defenses to rape laws for consensual sex between minors who are between 13 and 15 and adults who are less than 4 years older than a teen. While rape and related felony crimes may not apply, it is a misdemeanor crime called Sexual Misconduct for two teens to have sex that would be prosecuted in Family Court.

So, back to Long Island. As I wrote above, the full facts of the case are not known. However, the crimes that the two 14-year-olds were arrested for were intended to apply to those who profit from child pornography, which no evidence of has come to light, and to sexual predators who lure children in Internet chat rooms. And while those crimes are felonies the alleged sex acts are probably not. However, it may be time to rethink sexting laws as they apply to teens--which is treated as child pornography--when it is punished far more harshly than the actual sex acts may be.