Guidance on new Legislation Regarding "Sexting"
In 2017, the Colorado Legislature passed HB 17-1302, which implements changes to the way prosecutors can address juvenile "sexting" cases.
Prior to the enactment of this law, prosecutors’ only option for charging teen sexting behavior (even among consenting friends) was felony exploitation of a child. The new law, which applies to behavior on or after January 1, 2018, is a tiered approach that separates abusive forms of sexting (such as malicious distribution) from consensual electronic exchange of explicit images.
The Colorado School Safety Resource Center (CSSRC) has been mandated to create a comprehensive education program to distribute to schools by June 2018, regarding risks, consequences, and defenses to charges of sexting behavior. In the meantime, CSSRC has released a brief video and the following summary to help the public understand this new, tiered system.
|Offense||Committed if Juvenile:||Penalty||Enhanced to:|
|POSTING||Knowingly distributes, displays or publishes image another who is at least 14 or is less than 4 years younger without permission;
OR of him/herself if therecipient didn’t request it and suffered emotional distress;
OR the poster knew or should have known that the depicted person had a reasonable expectation of privacy.
|Class 2 Misdemeanor||
Class 1 Misdemeanor if Intent to coerce, intimidate, threaten, or cause emotional distress;
|Knowingly possesses image of another who is at least 14 or is less than 4 years younger without permission.||Petty Offense||Class 2 Misdemeanor if: possessor has 10 or more images depicting 3 or more separate persons|
|EXCHANGING||Knowingly sends an image of self to another who is at least 14 or is less than 4 years younger and reasonably believed the recipient agreed;
OR Knowingly possesses an image of another who is at least 14 or is less than 4 years younger and reasonably believed depicted person agreed.
May be required to participate in an educational program
Additional facts to note about this law:
- Felony charges are still available under aggravating circumstances, but the court may not charge sexual exploitation AND posting of an image by a juvenile under the same facts. Juveniles MAY NOT be charged with felony exploitation if their conduct is limited to the elements of petty offense (possession) or civil infraction (exchange) under this law.
- Additionally, the court has discretion to exempt first offenders from the sex offender registry where their conduct meets the elements of posting or possessing private images by a juvenile.
- It is an affirmative defense if the juvenile takes reasonable steps to delete or report the image to law enforcement or an SRO within 72 hours of viewing, or if the juvenile was coerced, threatened or intimidated.
- This legislation requires the court to order the juvenile to be assessed for suitability to participate in restorative justice practices and encourages each D.A. to develop a diversion or alternative program for first offenders who violate the law.
- Records are expunged within 42 days after completion of the sentence or alternative program.