Indictment of solicitation of child pornography

Question

Let's say Bobby asked Sally if she wanted to trade lewd pictures when they were minors via an instant messenger. Sally flatly says no at the time, and no pictures are sent or received, with Bobby being 16 and Sally being 17 at the time. Let's say they both lived in New York when this took place.

Let's now say, 4 years later, Sally is flipping through her phone and sees the messages he sent asking her for explicit pictures of herself. If Sally decides she wants to charge Bob, in the state of New York, what can happen to Bob?

Answer 1

First of all, Sally can't charge Bob, or anyone else. She can file a complaint with the police, or with the District Attorney. It may or may not be investigated, and if it is, charges may or may not be brought, and she has no control over any of that, although she may be able to use persuasion or political pressure to influence the decision.

In New York, persuading a child to make pornography is a class C felony. Possessing child pornography is a class E felony. Promoting an obscene sexual performance by a child is a class D felony. Disseminating obscene material to a minor is a class E felony, unless the defendant solicits the child to engage in sexual activity, in which case it's a class D felony. All of these have 5-year statutes of limitation. (N.Y. Pen. Law § § 70.00, 80.00, 235.21, 235.22, 263.05, 263.10, 263.11, 263.16.)

I can't find any NY law that makes it a crime to ask for a naked image of a child and be refused, although there may well be one.

Note that it is not a crime in NY to posses sexual or nude pictures of a person 16 or older, although it is a crime to create them.

There are also federal laws against child pornography, but federal policy is not to bring federal cases where the accused are under 18 and a state case could be brought. In fact, the federal authorities generally do not bring cases except against major producers when a state case can be brought instead. But that is a matter of policy, not law.

NY has a pre-trial diversion program for teen-ages involved in "sexting". They can agree to take special classes, and avoid a criminal conviction or any jail time. The court must approve candidates individually for this program, but it is widely used.

In the given scenario, the statute of limitations would not have expired (if the law I couldn't find makes this a felony, misdemeanor SoL is 2 years). In theory bob could be charged and tried for his solicitation. If charges were levied, the prosecution would need to prove at trial that Bob had made the request, and that it was serious, not a joke. It would also need to persuade a jury to convict when no sexual image had ever been transmitted.

In practice I doubt that a case would be pursued after several years. That would depend entirely on the DA, or the relevant assistant DA who handled the case. Nothing would legally prevent such a case that I know of.

Answer 2

Sally is a red herring, because she is not under 17; the question is whether Bobby (who is under 17 but not under 16) can legally offer to make and send such a photo. Section 263.10 of the law says that "A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age". From the definitions, "'Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same". Also from the definitions, "'Sexual conduct' means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals'. Assuming that the genitals are to be lewdly displayed, we may have a crime.

That would be "any performance which, ... for purposes of section 263.10 of this article, includes sexual conduct by a child less than seventeen years of age, in any material which is obscene, as such term is defined in section 235.00 of this chapter". Bobby's offer to produce an obscene photo if an offer to manufacture and deliver a lewd picture. The law does not contain a "selfie" exception. Section 263.15 is essentially the same, with out the "obscene" qualifier.

Prosecution is discretionary, so we can't predict how the prosecutor will respond, but in principle Bobby could be prosecuted for offering to distribute self-porn. Prosecutors have prosecuted juveniles for sexting, though I don't know if they have done so in New York, and I don't know if offering to sext has been treated the same as actual sexting (in New York).