Sexting Laws In Kansas And Missouri

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“Sexting” is the term used to describe the sending or receiving of sexually explicit images, usually by means of a hand-held smart phone.  The ready access to photographic technology, and the ease with which photos can now be taken, mean that users of cell phones are more likely to take advantage of the technology.  Cell phones and smart phones are here to stay, and with this presence comes possible dangers.  What may seem funny or amusing is most certainly not.  When minors “sext” photos to others, even photos of themselves, serious criminal issues can be implicated.

“Sexual exploitation of a child” under Kansas law (K.S.A. 21-5510) is the following:

21-5510. Sexual exploitation of a child.  (a) Sexual exploitation of a child is:

(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, to engage in sexually explicit conduct with the intent to promote any performance;

(2) possessing any visual depiction of a child under 18 years of age shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender or any other person;

(3) being a parent, guardian or other person having custody or control of a child under l8 years of age and knowingly permitting such child to engage in, or assist another to engage in, sexually explicit conduct for any purpose described in subsection (a)(1) or (2); or

(4) promoting any performance that includes sexually explicit conduct by a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, knowing the character and content of the performance.

(b) (1) Sexual exploitation of a child as defined in:

(A) Subsection (a)(2) or (a)(3) is a severity level 5, person felony; and

(B) subsection (a)(1) or (a)(4) is a severity level 5, person felony, except as provided in subsection (b)(2).

(2) Sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) or attempt, conspiracy or criminal solicitation to commit sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) is an off-grid person felony, when the offender is 18 years of age or older and the child is under 14 years of age.

(c) If the offender is 18 years of age or older and the child is under 14 years of age, the provisions of:

(1) Subsection (c) of K.S.A. 2012 Supp. 21-5301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4);

(2) subsection (c) of K.S.A. 2012 Supp. 21-5302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4); and

(3) subsection (d) of K.S.A. 2012 Supp. 21-5303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4).

(d) As used in this section:

(1) ”Sexually explicit conduct” means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sado-masochistic abuse with the intent of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person;

(2) ”promoting” means procuring, transmitting, distributing, circulating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:

(A) For pecuniary profit; or

(B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender or any other person;

(3) ”performance” means any film, photograph, negative, slide, book, magazine or other printed or visual medium, any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk or any play or other live presentation;

(4) ”nude” means any state of undress in which the human genitals, pubic region, buttock or female breast, at a point below the top of the areola, is less than completely and opaquely covered; and

(5) ”visual depiction” means any photograph, film, video picture, digital or computer-generated image or picture, whether made or produced by electronic, mechanical or other means.

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Sexting could also fall under the Kansas statute for “promoting obscenity to a minor”, which is codified in K.S.A. 21-6401, shown in part below.  Note here that the mental state required is only “recklessly”, which is a lower mental state than “knowingly” or “deliberately.”

21-6401. Promoting obscenity; promoting obscenity to minors.

(a) Promoting obscenity is recklessly:

(1) Manufacturing, mailing, transmitting, publishing, distributing, presenting, exhibiting or advertising any obscene material or obscene device;

(2) possessing any obscene material or obscene device with intent to mail, transmit, publish, distribute, present, exhibit or advertise such material or device;

(3) offering or agreeing to manufacture, mail, transmit, publish, distribute, present, exhibit or advertise any obscene material or obscene device; or

(4) producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity.

(b) Promoting obscenity to minors is promoting obscenity, as defined in subsection (a), where a recipient of the obscene material or obscene device or a member of the audience of an obscene performance is a child under the age of 18 years.

(c) (1) Promoting obscenity is a:

(A) Class A nonperson misdemeanor, except as provided in (c)(1)(B); and

(B) severity level 9, person felony upon a second or subsequent conviction.

(2) Promoting obscenity to minors is a:

(A) Class A nonperson misdemeanor, except as provided in (c)(2)(B); and

(B) severity level 8, person felony upon a second or subsequent conviction.

In Missouri, there are several statutes that can be used to cover “sexting.”  These laws revolve around prohibitions of possession, making, or distributing child pornography.  The younger the victim is, the more severe the penalty.  Missouri statutes covering these offenses are:  RSMO Sections 573.010, 573.023, 573.025, 573.035, and 573.037.  Furthermore, the crime of “sexual misconduct involving a child” is covered under RSMo. 566.083:

566.083. 1. A person commits the offense of sexual misconduct involving a child if such person:

(1) Knowingly exposes his or her genitals to a child less than fifteen years of age under circumstances in which he or she knows that his or her conduct is likely to cause affront or alarm to the child;

(2) Knowingly exposes his or her genitals to a child less than fifteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child;

(3) Knowingly coerces or induces a child less than fifteen years of age to expose the child’s genitals for the purpose of arousing or gratifying the sexual desire of any person, including the child; or

(4) Knowingly coerces or induces a child who is known by such person to be less than fifteen years of age to expose the breasts of a female child through the internet or other electronic means for the purpose of arousing or gratifying the sexual desire of any person, including the child.

The provisions of this section shall apply regardless of whether the person violates this section in person or via the internet or other electronic means.

It is not a defense to prosecution for a violation of this section that the other person was a peace officer masquerading as a minor.

The offense of sexual misconduct involving a child is a class E felony unless the person has previously been found guilty of an offense under this chapter or the person has previously been found guilty of an offense in another jurisdiction which would constitute an offense under this chapter, in which case it is a class D felony.

Missouri also has a statute that forbids the furnishing of pornographic materials to a minor, RSMo. Sect. 573.040:

573.040. 1. A person commits the offense of furnishing pornographic material to minors if, knowing of its content and character, he or she:

(1) Furnishes any material pornographic for minors, knowing that the person to whom it is furnished is a minor or acting in reckless disregard of the likelihood that such person is a minor; or

(2) Produces, presents, directs or participates in any performance pornographic for minors that is furnished to a minor knowing that any person viewing such performance is a minor or acting in reckless disregard of the likelihood that a minor is viewing the performance; or

(3) Furnishes, produces, presents, directs, participates in any performance or otherwise makes available material that is pornographic for minors via computer, electronic transfer, internet or computer network if the person made the matter available to a specific individual known by the defendant to be a minor.

  1. It is not a defense to a prosecution for a violation of this section that the person being furnished the pornographic material is a peace officer masquerading as a minor.

  2. The offense of furnishing pornographic material to minors or attempting to furnish pornographic material to minors is a class A misdemeanor unless the person has been found guilty of an offense committed at a different time pursuant to this chapter, chapter 566 or chapter 568, in which case it is a class E felony.

There are a number of federal statutes that could possibly cover “sexting” types of scenarios, but these are not commonly used in this manner.  The point here is that “sexting” can be an extremely serious matter.  Sex offender registration is also an issue with these cases.  Parents and those in positions of authority should educate their children that under no circumstances should “sexting” be engaged in.

Read More:  Computer Child Pornography Cases In Kansas And Missouri

Computer Fraud And Computer Crimes In Kansas And Missouri

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Congress centralized computer crimes under one statute in 1984 with the passage of the “Counterfeit Access Device and Computer Fraud and Abuse Act.” The intention was to have a tool to prosecute computer-related crimes under the rubric of one statute.

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Computer-Based Pornography Cases In Kansas And Missouri

Internet-based prosecutions for child pornography have skyrocketed since 1997.  Simply stated, internet obscenity cases have skyrocketed.  From 1997 to 2004, there was a 422% increase in federal cases of this type.  The numbers have grown steadily since then.  In 2011, prosecutions were up by 40% since 2006, with an increasing number of more than 9,000 active cases.

Similar numbers have been observed for state-level cases.  We will discuss the background, nature, and defense of computer-based child pornography cases to better understand this expanding and serious area of federal and state prosecution.  Law enforcement agencies have adopted the latest state-of-the art technologies in devoting resources to this area, and deploy their resources accordingly.

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Computer Crimes And Cyber Crimes In Kansas And Missouri

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The increasing use of computers in every area of work and life has brought about a corresponding growth in the number and type of computer crimes being charged.  These computer crimes take various forms:  white collar type crimes, computer sex crimes, wire frauds, and others.  It is no secret that federal and state law enforcement agencies now have very broad powers to monitor internet use.

Cable companies can provide user data to law enforcement upon proper request, and such cooperation is now routine.  Federal agents and local law enforcement now have special squads to seize home or business computers.  The computers are then subject to exhaustive forensic searches, through the use of programs such as EnCase or Forensic Toolkit (FTK).

There is a record on every computer of nearly everything that has happened on that computer.  People rarely appreciate the capability, scope, and power of electronic media; and the detailed records that can be reconstructed of a person’s computer “life” is truly amazing:  search terms, downloads, sites, emails, forums, chatrooms, and electronic images can be accessed.

We have found that law enforcement is very proficient with the use of social media also:  Instagram, Facebook, Twitter, blogs, 4Chan, Reddit and associated subreddits, Tumblr, Tinder, OKCupid, and other dating sites can be accessed as the situation requires.

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Of particular concern is the advent of peer-to-peer “file sharing” software such as Frostwire, Gnutella, Kazaa, and Limewire.  Users of these file sharing sites can “share” music, movies, images, and other communications.  However, getting on these file sharing networks is not what it seems.  Just by being on these networks, without managing your settings, you can permit your computer to become a “bulletin board” or receiver of illicit material, usually child pornography.

We have seen situations where people download files en masse, only to discover that the files were mislabeled or contained contraband images.  The software’s default settings can cause participants to function as “through-ways” or passage-points for illegal material, with disastrous consequences.

An in depth knowledge of computer forensics is key to mount an effective defense.  We have this specialized knowledge.  At Phillips & Thomas LLC, our criminal defense department has defended a large number of these cases and have been able to secure outstanding results for our clients.

In our initial client interview, we will probe into the client’s degree of sophistication with computers; how the images got on the computer; statements to law enforcement, if any; possibility of entrapment (common in solicitation cases); and the lack of intent if a person didn’t know the images were of a minor.

It is critical initially to focus on the computer forensics.  It is important to:  (1) verify if a forensic exam has been done; (2) examine all internet service provider (ISP) reports; (3) request version numbers of law enforcement forensics software; (4) verify all communications between the ISP and law enforcement; (5) examine the search warrants for specificity and particularity; and (6) verify any interactions by NCMEC.

Computer sex crimes are encountered at both the state and federal levels.  In the pretrial stage is it also important to:  (1) retain a forensics expert if needed; (2) determine whether the image files were found in the web cache, which is a temporary storage location on computer hard drives that stores data from search requests; (3) see if the files were found in unallocated space, since this would show previously deleted images, and possibly lack of intent.  A working knowledge of the computer issues is what we have.

When someone has had a computer seized, a defense attorney can file motions to limit the scope of the forensic search, or even prevent the search altogether.  If overly broad searches have been conducted, motions to suppress and suppression hearings can be techniques to prevent the seized evidence from being used against a person.  Daubert motions can be filed challenging government experts.  Whether law enforcement has preserved all required communications, or can authenticate all communications, are crucial questions. It is absolutely critical to hire an attorney who can handle these issues right from the beginning.

Another commonly encountered type of computer crime is the “decoy” scenario, or the online “internet solicitation” scenario.  The increasing use (and relative anonymity) of social media and internet chatrooms means that the online world is a much more common way people have of communicating.  Law enforcement (both federal and local) have special teams that monitor these communications.

Frequently, however, we find that law enforcement goes beyond their mandate, and can stray into the region of entrapment of a defendant.  Creating a crime where none would have existed is a common feature of these online solicitation cases.

With the current requirement of sex offender registration upon conviction for these types of felony cases, the stakes are high.  It is absolutely critical to consult with an attorney at the very first stages of something bad happening.

Did you get a “friendly” call from a police detective who wants you to clarify something or “make a statement”?  Was your computer seized?  Did you get a call from a federal agent who wants to ask you some questions?  If so, you need legal counsel immediately.  Waiting is not an option.

Read More:  Different Types Of Federal Crimes