At the Law Offices of Tad Nelson & Associates, we understand the seriousness of criminal charges related to the sexual exploitation of a minor. While stopping and preventing child pornography is an admirable goal, there are many times when innocent people get caught up in the public panic over behavior like “sexting” and other acts that do not include the criminal exploitation of a minor. It is therefore important to have an experienced criminal defense team on your side when you are facing any sort of investigation or formal charge.
Promoting “Sexual Performance” by a Child
The Texas Penal Code defines a number of crimes under the general category of “public indecency.” This includes a number of offenses involving the use or promotion of minors—individuals under the age of 18—performing or simulating sexual acts. This is often called “sexual exploitation of a minor,” although that exact phrase is not used in the Penal Code.
Section 43.25 of the Penal Code, for example, makes “sexual performance by a child” a felony. This includes any act where a person “employs, authorizes, or induces” a minor “to engage in sexual conduct or a sexual performance.” A parent who tries to consent to such behavior on behalf of their child is also guilty of this offense.
Sexual exploitation of a minor under Section 43.25 is a third-degree felony punishable by between two and 10 years imprisonment. However, if the exploited minor is under the age of 14, the offense is elevated to a second-degree felony, which carries a maximum prison term of 20 years.
Intentionally Promoting Child Pornography
Criminal & sexual exploitation of a minor is not limited to people who knowingly produce and sell child pornography videos. A more common occurrence of exploitation involves sending a photo “depicting a minor engage in sexual conduct” over the Internet. For instance, sending a naked picture of a child to someone via email would still be considered “possession or promotion of child pornography,” even if it is just a single image.
There are, in fact, cases where a person unknowingly has images on their computer or other electronic device that that qualify as child pornography. And under the Penal Code, if a person has “six or more identical visual depictions of a child” engaged in sexual conduct, that is considered proof that the individual has “the intent to promote the material.”
One problem with the traditional legal approach to exploitation of minors is that it criminalizes what has become routine dating behavior in Texas high schools—namely, boyfriends and girlfriends sending provocative photos to one another via text or email. In some states, it is a felony sex crime for a teenager to voluntarily send an explicit photo of themselves to their partner. Even Texas considers “sexting” a misdemeanor.
A teenager who sends a sexually explicit text can still be charged with a crime under the Texas Penal Code. However, it is an “affirmative defense” if the teen can prove that the material in question depicted only themselves and their partner, that the couple is in fact in a “dating relationship,” and the parties are not more than two years apart in age.
Exploitation as Cyber-bullying
Another type of exploitation involves using images of minors engaged in sexual conduct for the purpose of embarrassing or harassing them. Such “cyber-bullying” is treated as a Class B misdemeanor under Texas law for a first offense. A second offense is a Class A misdemeanor.
Protecting the Innocent
Unfortunately, even saying the words “child pornography” tends to drive people into a frenzy where they demand immediate retribution based solely on unsubstantiated allegations. But no matter how outrageous the charges may seem at first glance, every criminal defendant has the right to the best defense available. Prosecutors make mistakes and innocent people should not have to pay for them. And even in cases where a person may be guilty of exploitation of a minor, there may be extenuating circumstances that the court should consider when determining an appropriate sentence.
The Law Offices of Tad Nelson & Associates Can Help
Tad A. Nelson and Amber Spurlock are Houston criminal defense attorneys with over 30 years of litigation experience. They understand exactly what is involved in successfully defending a person charged with sexual exploitation of a minor and other sex crimes. More importantly, they understand that every defendant is entitled to respect and a fair trial. They will make sure prosecutors and public hostility do not undermine a defendant’s constitutional rights. Call us today at (713) 659-0909 if you are in trouble and require immediate legal assistance.