International sexting between two minors - Text only

Question

A 12-year-old living in the U.S. "sexted" with a 14-year-old in Sweden.

Was any crime committed?

Are there possible legal consequences for either child having engaged in that act?

Answer 1

In the US, the various "child pornography" laws apply only if there is an actual picture of an actual child. A computer-generated image does not count under those laws, unless it is recognizably of an actual identifiable person who is or was a minor at the time, nor does a description of sex with a child, no matter how graphic or realistic.

However I need to point out that any accusation of child pornography is potentially very serious, and any person who has been or might plausibly have been accused of such would do well to consult a lawyer who can review the exact facts and has tools to check recent caselaw.

This page from the US DOJ says:

Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law. Section 2256 of Title 18, United States Code, defines child pornography as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law.

That page cites:

• 18 U.S.C. § 2251- Sexual Exploitation of Children (Production of child pornography)
• 18 U.S.C. § 2251A- Selling and Buying of Children
• 18 U.S.C. § 2252- Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution and receipt of child pornography)
• 18 U.S.C. § 2252A- certain activities relating to material constituting or containing child pornography
• 18 U.S.C. § 2256- Definitions
• 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States

The Wikipedia article mentions that:

Simulated child pornography was made illegal with the Child Pornography Prevention Act of 1996 (CPPA). The CPPA was short-lived. In 2002, the Supreme Court of the United States in Ashcroft v. Free Speech Coalition held that the relevant portions of the CPPA were unconstitutional because they prevented lawful speech. Referring to Ferber, the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children".

The opinion in Ashcroft included the statement that:

Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. See Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413, 419 (1966)

Under Ginsberg v. New York, 390 U. S. 629 (1968), it may be a crime for an adult to provide "inappropriate" sexual content to a child, even if the content is not legally obscene, but this does not apply when both parties to a communication are minors.

Text, written words, may be unlawful to distribute if and only if it passes the Miller* test, making it legally obscene. The wording of the test is:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.

This test applies whether the subjects are children or adults.

I do not know\ what rules would be applied by the authorities in Sweden. They are likely to be quite different.

Answer 2

If there is an actual case, could you link to the English text article that inspired the question?

On the U.S. side of the house, most laws reguarding sexual communications with minors do have a "Romeo and Juliete" exception where if both parties are close in age, but one would not be old enough to consent, it doesn't count (there is a minimum age for this, typically the younger has to be older than 11 and the elder has to be within a reasonable age range. It also does not count when the elder holds a "position of trust" over the younger, I.E. a Student Teacher cannot have a relationship with a 17 year old student even though their age difference would otherwise trigger a Romeo and Juliett exception.).

The general idea is that due to the way the U.S. school system is structured, a "Grade" will normally consist of students born between October of one year and December of the following (i.e. I am a 1989 bith. My class included children who were born between September or October of 1988 and December of 1989.). There are situations where a person who was born early in that time frame is dating a person who was born late in the year and so an 18 year old and a 17 year old would be talking about sex while the 18 year old can consent but the 17 year old cannot... despite having only months of seperation in age.

Theres also the case where an older student may take interest in a student in a lower class of about 1-2 grades lower. And this isn't even counting that students may be enrolled in public eduction until as late as 21 years old due to having been held back a year or two.

In any case, the laws were never intended to punish sexually active teens but adults from preying on teens and children. While most Americans would see 12 year old as too young for this conversation, they are aware that by that age, kids should have some working knowledge about reproduction and "The Talk" as it's generally called (that akward conversation between a parent and a child about sex) is typically in the pre-teen years of about 10-12 years old (I remember having it around this age and was thouroghly confused because Anikan's lack of a father had been part of the script of the then Newest installment of Star Wars. Damn Midichlorians!).

Answer 3

From the Swedish perspective, this is completely legal. Sweden even allows kids to sleep with each other as long as they are close in age. So the Swede won't have to face any trouble from Sweden, nor will they be extradited.

As far as the US is concerned, I'm not sure.