Last evening, some of the students in my Constitutional Law II course at UCF asked several, challenging questions regarding the constitutional prohibition on child porn, and the enforcement mechanisms used by the States on sexting offenses. For those unaware, “sexting” is the process of text messaging to another various sexually explicit images. This issue has taken on significance in light of the prosecution in several states, including Florida, of young individuals, i.e. teens and/or those under 21 years of age, with child pornography offenses — despite these sexting messages involving consensual creation of images, often between boyfriend/girlfriend.
A couple of years back, I was involved in a notable case, that of Philip Alpert. Alpert had been prosecuted by Florida authorities after sending sexting messages (originally sent to him by his girlfriend) to some friends following an argument with the girlfriend. Alpert was charged with transmission of child pornography, a third-degree felony and an offense which is deemed “sexual offender eligible.” My old firm and I were not involved with the original criminal defense.
Alpert was compelled to plead out to his offense, under a threat from prosecutors to file additional charges for each, separate sexting image. Alpert received probation, but he also was tagged — potentially, for the rest of his life — as a “sexual offender.” Naturally, this label had, and will continue to have, a detrimental impact upon every aspect of Alpert’s livelihood. At the time that he had retained my old firm and me, Alpert had been expelled from community college, and then lost his job with an electronics chain.
Several states have made progress with removing the stigma of a felony, as well as a sexual offender label, from cases such as Alpert. States such as Utah, Vermont and Illinois passed legislation which — in their own, separate ways — redefined child porn so as to eliminate sexting cases involving minors or individuals under a certain age, and involving situations such as Alpert’s. Florida has yet to make such strives. Former State Senator Dave Aronberg had pushed potential legislation back in 2009 — unfortunately, he was unable to find a GOP co-sponsor for this sensible legislation. Considering how widespread sexting is among America’s youth, it is absolutely shocking to consider that any one of these individuals could be nabbed for a felony offense that would brand them as “sexual offenders,” and ostensibly for the entirety of their lives.
Any way, let the open forum on this commence ….