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Hypothetically, imagine this: suppose that a drunken man has an online Facebook conversation with a friend, they start talking about his ex-girlfriend. Then, they talk about his private and sexual life with his ex-girlfriend and he talks about very intimate and sexual details of his sexual life with his ex-girlfriend. He sends a picture of his ex-girlfriend, and continues talking about how he had sexual relations with her. Later, he looks back at the conversation and realizes that the picture of his ex-girlfriend which he sent was taken while she was standing next to her sister who is obviously a minor (or that her sister is standing in the background of the picture, maybe her face is unidentifiable?) Or perhaps, suppose if his ex-girlfriend was in the center of the picture, but her sister was on the side or in the background of the picture?

Has he by mistake admitted to doing something illegal (although he hasn't done anything unlawful in reality)?

Has he done anything illegal, or would the context of the conversation be important to a court of law and law enforcement?

  • Is the sister doing anything inappropriate in this picture (in a sexual nature of sorts?) – hszmv Feb 12 '18 at 16:16
  • No. Hypothetically, assume it's just a regular picture where they're standing next to each other or the sister is standing in the background. – Jason Feb 12 '18 at 16:19
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    Assuming that the Reasonable Person can determine that the older woman is the subject of the discussion AND there is nothing inappropriate about the minor's actions in the picture, I see nothing wrong with this, legally... There could be issues with the ex for sending third parties pictures of the family while discussing her, but nothing clearly wrong without further context of it's involvement in a criminal complaint (i.e. The friend kills the sister, mistaking the drunken texts as a request to murder the ex...). – hszmv Feb 12 '18 at 16:27
  • I'll write a hypothetical conversation to clarify what I'm asking about. Here it goes: Person A: "this is my ex-girlfriend, I did this and this with her" (and he sends the picture of his ex-girlfriend while her sister is standing in the background), Person B: "tell me more". Person A: "I did this and this with her" (by "this and this", he's describing his sexual life with his ex-girlfriend, who is an adult). – Jason Feb 12 '18 at 16:39
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    @Jason Including comments you say "hypothetically" (or hypothetical) 23 times. That encourages skepticism, rather than assuredness. Just an observation. – user14261 Feb 13 '18 at 0:23
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Being misunderstood is not a crime.

You could concoct scenarios where any number of statements could be a crime if interpreted unfairly. "I went to Georgia last weekend." "I choose to believe you mean the country instead of the state, and you don't have a passport, therefore you admitted that you went to a foreign country illegally!"

The police would be free to investigate, but they wouldn't be able to get a warrant or arrest him based just on an ambiguous statement, let alone obtain a conviction.

Of course, if the younger sister decided to accuse him, and the older sister decided to lie about having a relationship with him, that puts the statement in a whole other context - but if someone is falsely accusing you and someone else corroborates their story, you're probably in trouble no matter how exactly that came about.

  • Such a good answer, thank you. I would like to ask, are you a lawyer? – Jason Feb 12 '18 at 18:17
  • I am not. So don't take this (or anything you read in this forum, for that matter) as legal advice. – D M Feb 12 '18 at 18:20
  • "but they wouldn't be able to get a warrant or arrest him based just on an ambiguous statement, let alone obtain a conviction." When would they, hypothetically, be able to get a warrant or arrest someone? Hypothetically: does the age of the sister in the hypothetical example matter? Just for example, if she was 16/15/14 or younger, for instance, would the outcome be different? This is just a hypothetical question/scenario about law and justice for the purpose of learning about law, nothing else. – Jason Feb 12 '18 at 18:21
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    The standard for a warrant (arrest warrant or search warrant) is "probable cause" (under US law, anyway.) See Brinegar v. United States supreme.justia.com/cases/federal/us/338/160/case.html for a Supreme Court definition of probable cause. "probable cause exists where the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." And obviously the age of consent varies by state. – D M Feb 12 '18 at 18:46
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    Then their arrest/search warrant application would presumably be denied by the (hopefully reasonable) judge. If not... well, the appeals process from that would probably be its own question. – D M Feb 12 '18 at 19:19
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Generally speaking, this does not seem like a problem: The guy sent a photograph of two clothed people and a bunch of text describing sexual activity between consenting adults. Some ways that it could be a problem, which disagree with the facts presented:

  • True depictions/descriptions of sexual activity with a minor
  • True depictions/descriptions of non-consensual sexual activity with anybody
  • Distributing pornographic/sexual images of another person without that person's permission (depending on jurisdiction)
  • Falsely claiming as true untrue statements about another person that would tend to lower that person's reputation in the community (defamation)
  • If the man had/wanted a security clearance to access government secrets, and the conversation content revealed material that could be used for blackmail OR demonstrated extremely poor judgment/handling of confidential information
  • If the transcript was shared with and believed to be true by someone the man wanted to be partnered with, the probability of that partnership might be reduced (not a legal problem, but still potentially viewed as a problem).

In the first two categories, if the descriptions were made/interpreted, regardless of truth, they could provide some reason to investigate further to see if they were true or not. If an investigator concludes they are probably not true, there shouldn't be an issue. If an investigator believes that the depictions/descriptions in combination with other evidence prove beyond a reasonable doubt that a crime was truly committed, they could prosecute that. (The legal standard to start prosecution is lower, but they like a pretty high win percentage and to focus resources where they have more to go on.)

If investigators get a copy of the chat and the man were a suspect in some related crime, they might try to use it to show state of mind (e.g. "the woman was killed/raped/etc, and here's this chat from our prime suspect her ex showing how upset and emotionally agitated he was two hours before.") The conversation itself, as described, does not seem to be a crime.

Also, context matters. People in private Facebook chats with friends have no legal obligation to tell the truth, and sometimes lie. People, especially men, in private conversation sometimes invent fictions with no claim to the truth and/or brag about sexual activities regardless of whether or not those statements are true. (As the US president might say, "that's just locker room talk.") Were there to be any more serious charges of legal issues, the alleged offender would be given a chance to explain himself and frame the conversation in context appropriately and attempt to dispel misinterpretations. However, the people who investigate such allegations are human and able to recognize context too; the conversation described seems unlikely to draw any sustained attention.

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