At the outset, let me impart some advice, based upon my collective analysis cyberlaw cases over the past two decades. Regardless of how many times your underage girl “friend” requests you to email her a picture of your penis, do not, let me repeat, do not email your underage girl “friend” a photograph of your penis. However, if you ignore this advice, and do email your girl “friend” a photograph of your penis, bear in mind that while sporting an erection in the picture may or may not impress the Russian judges, it will most certainly fas ttrack your girl “friend’s” father’s pursuit of your sexting conviction.
In 2005, Jorge Canal was eighteen years old and attended high school with a fourteen-year-old female he had known for approximately one year. They both associated with the same group of friends, many of whom were older than fourteen. During a phone call between Canal and the girl, the girl requested, three or four times, that Canal send her a photograph of his penis. While there is some dispute as to the specific turgidity requested, Canal emailed the girl one picture of his face and one picture of his erect penis. The picture of Canal’s penis included a text message “I love you.” The girl testified that she viewed the picture and thought she had deleted it. She stated that she requested the photograph as a joke, as other friends were doing the same thing. The girl testified that she did not request the photograph in an effort to excite any feelings. When here mother checked the girl’s email account, she found the photograph and forwarded it to her husband who contacted the police.
Iowa Code section 728.2 reads as follows:
Dissemination and exhibition of obscene material to minors.
Any person, other than the parent or guardian of the minor, who knowingly disseminates or exhibits obscene material to a minor, including the exhibition of obscene material so that it can be observed by a minor on or off the premises where it is displayed, is guilty of a public offense and shall upon conviction be guilty of a serious misdemeanor.
In Canal’s trial, the jury was provided with the elements necessary to convict Canal of violating Iowa Code section 728.2:
1. On or about the 15th day of May, 2005, the defendant knowingly disseminated or exhibited obscene material to [the girl].
2. [The girl] was then under the age of eighteen.
3. The defendant was not the parent or guardian of [the girl].
The jury was given the following definition of “obscene” material:
any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value. (emphasis added)
The jury was instructed “prurient interest” is defined as “a shameful or morbid interest in nudity, sex, or excretion” and in determining the community standards, they were entitled to draw on their own knowledge of the views of the average person in the community or the vicinity from which they come to make their determination, within the parameters of the foregoing definitions.
The jury found Canal guilty of knowingly disseminating obscene material to a minor. The trial court granted Canal a deferred judgment, placed him on probation, fined him $250, required him to register as a sex offender.
Canal appealed, arguing that the jury instructions went beyond Iowa Code section 728.2. By adding the language “with respect to what is suitable material for minors,” the jury instruction, Canal argued, implied a different obscenity test for adults and minors. Canal also argued his counsel was ineffective for failing to include a jury instruction that mere nudity is not obscene.
This is where it gets a little complex. Given the way Canal structured his appeal, the Iowa Supreme Court was not charged with revisiting the case or finding facts. The Iowa Supreme Court’s charge was merely to determine, given the jury instructions as the law of the case, was there enough evidence provided to the jury to convict Canal. The question was not whether the Iowa Supreme Court, or some other jury, in some other court would convict Canal. The question on appeal was simply whether the evidence could support a hypothetical jury’s conviction, based upon the evidence presented at trial. The Iowa Supreme Court was required to review the evidence in the light most favorable to the prosecution. In its ruling, the Iowa Supreme Court held that the evidence presented in the record was sufficient for the jury to determine, under its own community standards, that the material Canal sent to the girl was indeed obscene.
On Canal’s ineffective assistance of counsel appeal, the Iowa Supreme Court held that “[w]hen viewing the instructions in their entirety, the [trial] court effectively instructed the jury that mere nudity does not constitute obscenity.”
While this case hinged more on procedural than substantive grounds, it is clear Iowa is aggressively pursuing sexting cases under Iowa Code section 728.2. Like sexting statutes across the country, Iowa’s statute is being broadly interpreted by the courts. Any child with a phone, or who has friends with phones, should know sexting is not a game. Sexting has serious legal and potentially life threatening consequences.
Forwarding, and possibly even receiving, obscene pictures may result in your minor child being criminally convicted and placed on the sex offender registry. Moreover, as sexual predators are often involved in the electronic transmission of obscene materials, a criminal conviction is one of the milder fates which can befall a child involved with sexting. Take today to talk to your child about the dangers of sexting.