The headline sounds like a late-show host’s dream: Weiner sentenced to 21 months in prison for sexting minor. Former U.S. Representative Anthony Weiner has just been handed down a sentence for his actions in sending racy and obscene messages last year to a girl who was just 15-years old at the time.
Weiner was aware that the girl was a high school student, but continuously asked her to engage in sexually explicit activities on Skype and Snapchat. Weiner pled guilty in New York federal court to crimes of transmitting obscene material to a minor. He faced a sentence of up to 10 years in prison. This wasn’t Mr. Weiner’s first time he had been involved in a sexting scandal – he had been given multiple second chances after particularly spectacular implosions. The judge cited these events and noted that Weiner continued to act inappropriately when sentencing him. She recognized that he had made progress in his therapy and counseling that he will continue, but determined that his crimes deserved prison time – order 21 months. The fine for his actions is $10,000.00, plus he has destroyed his career, and perhaps the career of other politicians.
Sexting laws have developed quickly over the last decade, and are particularly harsh when it comes to minors. However, most of these laws were designed to protect minors from predators, rather than minors indiscretions with others. Some states, like New York, have introduced diversion programs that educate teenagers who have committed sexting crimes rather than facing a prison sentence. In the state of New York, it is a crime to persuade someone under the age of 17 to make a sexual or nude image, or distribute these image. However, the child pornography laws as they relate to sexting are somewhat inconsistent. For example, it is not a crime to possess pornography featuring a minor, but making or distributing it is illegal.
Mr. Weiner was prosecuted under federal law. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (or PROTECT) Act has made it a crime to produce, distribute, receive or possess any obscene visual depiction of a minor engaged in explicit content. It is a crime to use a computer to ship, transport, or receive a depiction of a minor actually engaging in sexually explicit conduct – which is what Mr. Weiner has done.
The definition of what ‘obscene’ is has yielded some fairly interesting case law. The Miller case set forth a three-part test to determine whether or not something is obscene. First, it must be determined whether the average person, using contemporary adult social standards, would find that the matter on the whole appeals to prurient interests (or something that is shameful, abnormal, unhealthy, or degrading). Next, whether the average person, using contemporary adult social standards, finds that the matter depicts of describes sexual conduct in a patently offensive way. Finally, whether a reasonable person finds that the matter, on the whole, lacks serious literary, artistic, political or scientific value. If the material satisfies the three prongs, then it might be found to be obscene. If the material is obscene and involves a minor, then most defendants could expect to serve jail time, as well as pay hefty fines and even register as a sex offender. As part of Mr. Weiner’s plea agreement, he will be registered as a sex offender, to alert his neighbors of his misdeeds, even though all his crimes took place over the Internet.