2018 Changes To Juvenile Sexting Laws In Colorado 18-7-109 & 18-6-403

By H. Michael Steinberg Colorado Juvenile Crimes  Criminal Defense Lawyer – Attorney

2018 Changes To Juvenile Sexting Laws In Colorado – On January 1, 2018 Juveniles who are eligible to be prosecuted for sexting will benefit from a new law that introduces a more reasoned approach to the act of sexting – House Bill 17-1302.

Juvenile “sexting” is teenagers sending and receiving nude photos of each other over their cell phones. Studies have shown that about 30 percent of teenagers sext In Colorado – it is critical to understand this – sexting can be treated as child pornography, (Sexual Exploitation) which is a very serious felony or it can be charged under this new statutory scheme.. the laws explained in this article..

Sexting is the combination of sex and texting and is defined simply as sending, receiving, or forwarding sexually explicit messages, photographs or images with cell phones, or any other digital device.

The new law is complex – with many sections that are somewhat difficult to follow…I will do my best. I have explained it in different ways below.

A Birdseye View of The New Statutory Scheme For Sexting In Colorado

Prior to the passage of HB 17-1302 Colorado prosecutors the only tool available to charge a juvenile involved in sexting was the Colorado § 18-6-403 – Felony 3 crime of Felony Exploitation Of A Child. This charge can bring with it not only a sex crime conviction but public sex-offender registration, sex-offender treatment and sex-offender management provisions.

The new law takes a “tiered approach” to the crimes by separating out abusive forms of sexting (such as malicious distribution) from the consensual electronic exchange of explicit images.

For example, the law identifies the kind of sexing happening and provides options and sanctions commensurate with the acts. By focusing on the role of each actor in the behavior involved within a sexting incident, the law, as described more fully below, distinguishes the juvenile who distributes a sexually explicit image of another juvenile, the depicted juvenile or the victim of the sexting and those who possess images that were never solicited.

The Best Way To Understand A New Law Is To Read What The State Legislature Describes As The Reasons Fo The New Law – The Legislative Declaration

The Legislative Declaration For The 2017 House Bill 17-1302.

(1) The general assembly hereby finds and declares that:

(a) Currently when a juvenile engages in sexting behavior, usually the only available offense with which to charge that juvenile is sexual exploitation of a child, which is a class 3 felony;

(b) It is necessary to provide in statute the ability of all law enforcement, including district attorneys, to charge lower level offenses or civil infractions in addition to providing other diversionary programs that can more appropriately address the conduct involved in cases involving sexting behavior;

(c) It is imperative that, for any offense charged or civil infraction issued, the court have the discretion to impose appropriate sanctions that are consistent with the objectives of the Colorado children’s code; and

(d) In order to track and assess the efficacy of creating these new offenses and their impact on any reduction in the filing of felony charges, the impact on the number of diversion or alternative case resolution programs, the level of education provided to teens on issues related to sexting behavior, and any discernable impact on teen sexting behavior, the judicial department, school safety resource officers, and district attorneys’ offices should track the number of cases, including the offenses involved, the number of juveniles who participated in the education programs provided for in this legislation, and who provided those programs.

(2) Therefore, the general assembly is creating the crimes of posting private images by a juvenile and possessing private images by a juvenile and the civil infraction of exchange of a private image by a juvenile.

What The Law Does, And Does Not, Do – The Types Of Behavior Addressed In Colorado’s New Sexting Law – 18-7-109

To best understand the Colorado new Sexting law – you should view the law- 18-7-109 – as taking a “tiered approach” that defines the mutli-levels of sexting and corresponding penalties associated with those levels.

Possession Only

The law – 18-7-109 – creates the crime of posting private images by a juvenile. This crime prohibits a juvenile from:

• knowingly distributing, displaying, or publishing, through digital or electronic means, a sexually explicit image of himself or herself or of another juvenile to the view of more
• than one other person or to the view of another person:
• Without the depicted juvenile’s consent; or
• When the recipient did not solicit or request to be supplied with the image or images and suffered emotional distress;

or

When the juvenile knew or should have known that the depicted juvenile had a reasonable expectation that the image would remain private.

The law – 18-7-109 – also creates another crime of possessing private images by a juvenile.

The offense prohibits a juvenile from:

possessing a sexually explicit image of another juvenile without the depicted juvenile’s consent or after the depicted juvenile rescinds his or her consent.

A juvenile whose conduct satisfies either offense cannot be charged with sexual exploitation of a child – the much more serious crime – (see 18-6-403 CRS – reprinted below).

If The Defendant Is Under 18 Years Of Age

The law also creates an exception to the crime of sexual exploitation of a child (see 18-6-403 below) if the person is under 18 years of age and the child is at least 14 years of age or less than 4 years younger than the person.

… BUT this exception does NOT apply if the person discloses publicly any sexually exploitative material that depicts the child or distributes, displays, or publishes, with the intent to obtain a pecuniary benefit from anyone, sexually exploitative material that depicts the child.

Bullied Into Publishing The Images

The law – 18-7-109- also provides that it is not a violation of Sexual Exploitation of a Child- 18-6-403 – if a person under 18 was coerced, intimidated, or harassed into disclosing publicly a sexually exploitative image.

A Built In Defense For Doing The “Right Thing”

It is not a crime AT ALL if the juvenile does this things in this way:

• Took reasonable steps to either destroy or delete the image within 72 hours after initially viewing the image; or

•Reported the initial viewing of such image to law enforcement or a school resource officer within 72 hours after initially viewing the image.

The Law – House Bill 17-1302 – Also Makes Changes The Requirement To Publicly Register Under Colorado’s Sex Offender Registry

House Bill 17-1302 also amends Colorado’s Sex Offender Mandatory Registration Law C.R.S. 16-22-103(5)(a) and (5)(a)(III) to provide discretion to the Trial Judge to avoid the need to publicly register – as follows:

16-22-103. Sex offender registration – required – applicability exception.

…..

(5) (a) Notwithstanding any provision of this article 22 to the contrary, if, pursuant to a motion filed by a person described in this subsection (5) or on its own motion, a court determines that the registration requirement specified in this section would be unfairly punitive and that exempting the person from the registration requirement would not pose a significant risk to the community, the court, upon consideration of the totality of the circumstances, may exempt the person from the registration requirements imposed pursuant to this section if:

(I) The person was younger than eighteen years of age at the time of the commission of the offense; and

(II) The person has not been previously charged with unlawful sexual behavior; and

(III) The offense, as charged in the first petition filed with the court, is a first offense of misdemeanor unlawful sexual contact, as described in section 18-3-404 ; indecent exposure, as described in section 18-7-302 ; or sexual exploitation of a child, as described in section 18-6-403, and the person’s conduct is limited to the elements in posting private images by a juvenile, as described in section 18-7-109(1), or possessing private images by a juvenile, as described in section 18-7-109(2) ; and

(IV) The person has received a sex offender evaluation that conforms with the standards developed pursuant to section 16-11.7-103(4)(i), from an evaluator who meets the standards established by the sex offender management board, and the evaluator recommends exempting the person from the registration requirements based upon the best interests of that person and the community; and

(V) The court makes written findings of fact specifying the grounds for granting such exemption.

Summary – 2018 Changes To Juvenile Sexting Laws In Colorado 18-7-109 & 18-6-403

Here is a summary of the bill provided by the Colorado State Legislature

The bill creates the criminal offense of posting a private image by a juvenile.

The offense can be committed in 2 ways.

The first way is if a juvenile, through digital or electronic means, knowingly distributes, displays, or publishes to the view of another person a sexually explicit image of a person other than himself or herself who is at least 14 years of age or is less than 4 years younger than the juvenile:

• Without the depicted person’s permission; or

• When the recipient did not solicit or request to be supplied with the image and suffered emotional distress; or

• When the juvenile knew or should have known that the depicted person had a reasonable expectation that the image would remain private.

[HMS – The most serious options available to the DA under this law – the Class 1 and Class 2 Misdemeanors].

The second way is if the juvenile knowingly distributes, displays, or publishes, to the view of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, a sexually explicit image of himself or herself when the recipient did not solicit or request to be supplied with the image and suffered emotional distress. The offense is a class 2 misdemeanor; except that it is a class 1 misdemeanor if:

•The juvenile committed the offense with the intent to coerce, intimidate, threaten, or otherwise cause emotional distress to the depicted person; or

•The juvenile had previously posted a private image and completed a diversion program or education program for the act pursuant to the provisions of the bill or had a prior adjudication for posting a private image by a juvenile; or

•The juvenile distributed, displayed, or published 3 or more images that depicted 3 or more separate and distinct persons.

The bill creates the criminal offense of possessing a private image by a juvenile that prohibits a juvenile, through digital or electronic means, from knowingly possessing a sexually explicit image of another person who is at least 14 years of age or is less than 4 years younger than the juvenile without the depicted person’s permission

[HMS – The Escape Hatch provisions]

It is not an offense if the juvenile:

• Took reasonable steps to either destroy or delete the image within 72 hours after initially viewing the image; or

• Reported the initial viewing of such image to law enforcement or a school resource officer within 72 hours after initially viewing the image.

The offense is a petty offense; except that it is a class 2 misdemeanor if the unsolicited possessor of the image possessed 10 or more separate images that depicted 3 or more separate and distinct persons.

[HMS – The Civil – Not Criminal Infraction Option]

The bill creates a civil infraction of exchange of a private image by a juvenile if a juvenile, through digital or electronic means:

• Knowingly sends a sexually explicit image or images of himself or herself to another person who is at least 14 years of age or is less than 4 years younger than the juvenile, and the image or images depict only the sender and no other person and the sender reasonably believed that the recipient had solicited or otherwise agreed to the transmittal of the image or images; or

• Knowingly possesses a sexually explicit image or images of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, and the image or images depict only the sender and no other person and the juvenile reasonably believed that the depicted person had transmitted the image or images or otherwise agreed to the transmittal of the image or images.

The civil infraction can be punished by participation in a program designed by the school safety resource center or other appropriate program addressing the risks and consequences of exchanging a sexually explicit image of a juvenile or a fine of up to $50, which may be waived by the court upon a showing of indigency.

If a juvenile’s conduct is limited to the elements of the petty offense of possession of a private image by a juvenile or limited to the elements of the civil infraction of exchange of a private image by a juvenile, then the juvenile cannot be charged with sexual exploitation of a child. If a juvenile is charged with posting a private image by a juvenile, he or she cannot be charged with sexual exploitation of a child.

[HMS – Can petition to avoid sex offender registration]

The bill allows a juvenile to petition the court to not impose sex offender registration if he or she is charged with sexual exploitation of a child and the juvenile’s conduct satisfies posting a private image by a juvenile or possession of a private image by a juvenile.

It is an affirmative defense to the two criminal offenses and the civil infraction if a juvenile is coerced, threatened, or intimated into distributing, displaying, publishing, possessing, or exchanging a sexually explicit image of a person under 18 years of age.

[HMS – Importantly – Records are expunged within 42 days after completion of the sentence or alternative program.]

The court must order the records of any of the 2 criminal offenses or civil infraction expunged within 42 days of completion of the sentence or program.

The bill requires the school safety resource center to make available a sexting curriculum for school districts to use.

Conclusion – 2018 Changes To Juvenile Sexting Laws In Colorado 18-7-109 &18-6-403

Do NOT interpret this law as removing the possibility of Felony Charges under Colorado’s Sexual Exploitation laws. Colorado DA’s still have discretion to file the case under this very serious statute in the aggravated case where the elements of the Juvenile’s actions did not meet the requirements of the more mitigated new law.

Primary Example:

If a 16 year old girl sends an inappropriate picture of herself to her boyfriend, it will likely be considered a civil infraction and carry a $50 fine or the successful completion of a sexting class.

But if those same two people break up and the boyfriend then sends that picture to his friends, it could be anything from misdemeanor with no sex registry requirements to a felony, depending on the circumstances.

So, once again – it is a Class 2 misdemeanor if a juvenile:

knowingly distributes, displays, or publishes to the view of another person a sexually explicit image of a person other than himself or herself who is at least 14 years of age or is less than 4 years younger than the juvenile:

1. Without the depicted person’s permission.

2. When the recipient did not solicit or request to be supplied with the image and suffered emotional distress.

3. When the juvenile knew or should have known that the depicted person had a reasonable expectation that the image would remain private or

4. If “the juvenile knowingly distributes, displays, or publishes, to the view of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, a sexually explicit image of himself or herself when the recipient did not solicit or request to be supplied with the image and suffered emotional distress.”

Important Note: Remember The Crime Can Be “Up-Charged” To A Class 1 Misdemeanor If:

1. The juvenile committed the offense with the intent to coerce, intimidate, threaten, or otherwise cause emotional distress to the depicted person or:

2. The juvenile had previously posted a private image and completed a diversion program or education program for the act pursuant to the provisions of the bill or had a prior adjudication for posting a private image by a juvenile.

3. The juvenile distributed, displayed, or published three or more images that depicted three or more separate and distinct persons.”

What Follows Is The New Law – 18-7-109

§ 18-7-109. [Effective 1/1/2018] Posting, Possession, or Exchange of a Private Image by a Juvenile – Definitions – Penalties

(1) A juvenile commits the offense of posting a private image by a juvenile if he or she, through digital or electronic means:

(a) Knowingly distributes, displays, or publishes to the view of another person a sexually explicit image of a person other than himself or herself who is at least fourteen years of age or is less than four years younger than the juvenile:

(I) Without the depicted person’s permission; or

(II) When the recipient did not solicit or request to be supplied with the image and suffered emotional distress; or

(III) When the juvenile knew or should have known that the depicted person had a reasonable expectation that the image would remain private; or

(b) Knowingly distributes, displays, or publishes, to the view of another person who is at least fourteen years of age or is less than four years younger than the juvenile, a sexually explicit image of himself or herself when the recipient did not solicit or request to be supplied with the image and suffered emotional distress.

(2) A juvenile commits the offense of possessing a private image by a juvenile if he or she, through digital or electronic means, knowingly possesses a sexually explicit image of another person who is at least fourteen years of age or is less than four years younger than the juvenile without the depicted person’s permission;

…. except that it is not a violation of this subsection (2) if the juvenile:

(a) Took reasonable steps to either destroy or delete the image within seventy-two hours after initially viewing the image; or

(b) Reported the initial viewing of such image to law enforcement or a school resource officer within seventy-two hours after initially viewing the image.

(3) A juvenile commits the civil infraction of exchange of a private image by a juvenile if he or she, through digital or electronic means:

(a) Knowingly sends a sexually explicit image or images of himself or herself to another person who is at least fourteen years of age or is less than four years younger than the juvenile, and the image or images depict only the sender and no other person and the sender reasonably believed that the recipient had solicited or otherwise agreed to the transmittal of the image or images; or

(b) Knowingly possesses a sexually explicit image or images of another person who is at least fourteen years of age or is less than four years younger than the juvenile, and the image or images depict only the sender and no other person and the juvenile reasonably believed that the depicted person had transmitted the image or images or otherwise agreed to the transmittal of the image or images.

(4) It is an affirmative defense to subsection (1), (2), or (3) of this section if a juvenile is coerced, threatened, or intimidated into distributing, displaying, publishing, possessing, or exchanging a sexually explicit image of a person under eighteen years of age.

(5) (a) Posting a private image by a juvenile is a class 2 misdemeanor; except that it is a class 1 misdemeanor if:

(I) The juvenile committed the offense with the intent to coerce, intimidate, threaten, or otherwise cause emotional distress to the depicted person; or

(II) The juvenile had previously posted a private image and completed a diversion program or education program for the act pursuant to the provisions of this section or had a prior adjudication for posting a private image by a juvenile; or

(III) The juvenile distributed, displayed, or published three or more images that depicted three or more separate and distinct persons.

(b) Possessing a private image by a juvenile is a petty offense; except that it is a class 2 misdemeanor if the unsolicited possessor of the image possessed ten or more separate images that depicted three or more separate and distinct persons.

(c) Exchange of a private image by a juvenile is a civil infraction and is punishable by participation in a program designed by the school safety resource center or other appropriate program addressing the risks and consequences of exchanging a sexually explicit image of a juvenile or a fine of up to fifty dollars, which may be waived by the court upon a showing of indigency. If the juvenile fails to appear in response to a civil infraction citation or fails to complete the required class or pay the imposed fee, the court may issue an order to show cause requiring the juvenile’s appearance in court and impose additional age-appropriate penalties. The court shall not issue a warrant for the arrest of the juvenile or impose incarceration as a penalty.

(d) In addition to any other sentence the court may impose for a violation of subsection (1) of this section, the court shall order the juvenile be assessed for suitability to participate in restorative justice practices, if available, and, upon a determination of suitability, the court shall inform the victim about the possibility of restorative justice practices as defined in section 18-1-901(3) (o.5). The court shall not consider the victim’s unwillingness to participate in restorative justice practices when determining other sentencing options.

(e) Each district attorney is encouraged to develop a diversion program for juveniles who violate the provisions of this section and offer the program to a juvenile who is alleged to have violated this section for the first time. If the jurisdiction does not have a diversion program, the district attorney is encouraged to provide alternative programming designed to allow the juvenile to avoid any adjudication.

(6) The court shall order all records in a juvenile delinquency case in the custody of the court, and any records related to the case and charges in the custody of any other agency, person, company, or organization, that are related to an offense pursuant to this section expunged within forty-two days after the completion of the sentence or other alternative program.

(7) A person who is a victim of a violation of subsection (1), (2), or (3) of this section is eligible for compensation and services pursuant to part 1 of article 4.1 of title 24.

(8) As used in this section:

(a) “Juvenile” means a person under eighteen years of age.

(b) “Sexually explicit image” means any electronic or digital photograph, video, or video depiction of the external genitalia or perineum or anus or buttocks or pubes of any person or the breast of a female person.

_________________________________________

This Is The Revised Version Of Colorado’s Sexual Exploitation Of A Child Law 18-6-403

§ 18-6-403. [Effective 1/1/2018] Sexual Exploitation of a Child – Legislative Declaration – Definitions

(1) The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child’s right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.

(1.5) The general assembly further finds and declares that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act or acts of sexual abuse of a child; that each time such material is shown or viewed, the child is harmed; that such material is used to break down the will and resistance of other children to encourage them to participate in similar acts of sexual abuse; that laws banning the production and distribution of such material are insufficient to halt this abuse; that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials; and that the state has a compelling interest in outlawing the possession of any sexually exploitative materials in order to protect society as a whole, and particularly the privacy, health, and emotional welfare of its children.

(2) As used in this section, unless the context otherwise requires:

(a) “Child” means a person who is less than eighteen years of age.

(b.5) “Defense counsel personnel” means any defense attorney lawfully representing a defendant in a criminal case or a juvenile in a delinquency case that involves sexually exploitative material or another individual employed or retained by the defense attorney who performs or assists in the duties relating to the defense of the accused that may involve sexually exploitative materials.

(c) “Erotic fondling” means touching a person’s clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved. “Erotic fondling” shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

(d) “Erotic nudity” means the display of the human male or female genitals or pubic area, the undeveloped or developing genitals or pubic area of the human male or female child, the human breasts, or the undeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

(e) “Explicit sexual conduct” means sexual intercourse, erotic fondling, erotic nudity, masturbation, sadomasochism, or sexual excitement.

(e.5) “Law enforcement personnel” means any peace officer, prosecutor, criminal investigator, crime analyst, or other individual who is employed by a law enforcement agency or district attorney’s office and who performs or assists in investigative duties that may involve sexually exploitative materials.

(f) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.

(g) “Sadomasochism” means:

(I) Real or simulated flagellation or torture for the purpose of real or simulated sexual stimulation or gratification; or

(II) The real or simulated condition of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.

(h) “Sexual excitement” means the real or simulated condition of human male or female genitals when in a state of real or simulated overt sexual stimulation or arousal.

(i) “Sexual intercourse” means real or simulated intercourse, whether genital-genital, oral-genital, anal-genital, or oral-anal, between persons of the same or opposite sex, or between a human and an animal, or with an artificial genital.

(j) “Sexually exploitative material” means any photograph, motion picture, video, recording or broadcast of moving visual images, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct.

(k) “Video”, “recording or broadcast”, or “motion picture” means any material that depicts a moving image of a child engaged in, participating in, observing, or being used for explicit sexual conduct.

(3) A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:

(a) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the making of any sexually exploitative material; or

(b) Prepares, arranges for, publishes, including but not limited to publishing through digital or electronic means, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or

(b.5) Possesses or controls any sexually exploitative material for any purpose; except that this subsection (3)(b.5) does not apply to law enforcement personnel, defense counsel personnel, or court personnel in the performance of their official duties, nor does it apply to physicians, psychologists, therapists, or social workers, so long as such persons are licensed in the state of Colorado and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site; or

(c) Possesses with the intent to deal in, sell, or distribute, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or

(d) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the purpose of producing a performance.

(3.5) A juvenile’s conduct that is limited to the elements of the petty offense of possession of a private image by a juvenile, as described in section 18-7-109(2), or limited to the elements of the civil infraction of exchange of a private image by a juvenile, as described in section 18-7-109(3), is not subject to prosecution pursuant to subsection (3)(b) or (3)(b.5) of this section.

(5) (a) Except as provided in paragraph (b) of this subsection (5), sexual exploitation of a child is a class 3 felony.

(b) Sexual exploitation of a child by possession of sexually exploitative material pursuant to paragraph (b.5) of subsection (3) of this section is a class 5 felony; except that said offense is a class 4 felony if:

(I) It is a second or subsequent offense; or

(II) The possession is of a video, recording or broadcast of moving visual images, or motion picture or more than twenty different items qualifying as sexually exploitative material.

(6) If any provision of this section or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.

(7) A juvenile charged with a violation of section 18-7-109(1) is not subject to prosecution for violation of this section for the same electronic or digital photograph, video, or image arising out of the same criminal episode.

2017 Changes To Juvenile Sexting Laws In Colorado 18-7-109 &18-6-403

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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – 2017 Changes To Juvenile Sexting Laws In Colorado 18-7-109 & 18-6-403.