Tag Archives: sexting

Sexting minor’s lawsuit against website moves forward despite her violation of federal law

Doe v. Peterson, 2011 WL 1120172 (E.D.Mich. March 24, 2011)

When plaintiff Jane Doe was seventeen years old, she took some nude photos of herself and sent them over the internet to her boyfriend. Somehow the photos ended up on an adult website owned by defendants. Doe brought a civil cause of action against defendants for violation of the federal child pornography laws and for intrusion upon seclusion, public disclosure of private facts, intentional infliction of emotional distress, and negligence.

The defendants pled an interesting affirmative defense to Doe’s claims — in pari delicto. A plaintiff’s actions that are found to be in pari delicto are just as bad or worse than what the plaintiff is suing over, so in cases like that the court will not award relief. Doe moved to strike this affirmative defense. The court granted the motion.

Although the court found that “it seems clear that [Doe was] guilty of violating federal laws prohibiting the production and distribution of child pornography,” it held that as a matter of law the doctrine of in pari delicto was not available to the defendants as an affirmative defense.

The court refused to allow “broad common-law barriers to relief where a private suit serv[ed] important public purposes.” Doe was a member of the class sought to be protected by the statute she had violated, and was not equally culpable as defendants allegedly were in permitting the distribution of the images. In this respect, it was not clear that Doe was of greater or equal fault than defendants, so the in pari delicto defense did not apply.

Decision suggests that sexting by minors would violate federal child porn laws

Clark v. Roccanova, 2011 WL 665621 (E.D. Ky. February 14, 2011)

Is there a violation of the federal laws against child pornography when the accused himself is a minor? A Kentucky federal court says yes.

Three 14-year-old boys allegedly “coerced, enticed and persuaded” a 14-year-old girl to make a sexually explicit video. Later the three boys transmitted the video over the internet. The girl filed a civil suit against the boys for violations of 18 USC §§2251 and 2252.

The defendants moved to dismiss, arguing that the statutes covered only the conduct of adults. The court rejected that argument. It found that nothing in the plain language of the statutes, nor in the legislative history, supported such an interpretation.

Both statutes prohibit creation, possession and transmission of child pornography by any “person.” While “person” is not defined in 18 U.S.C. §2256, the statute’s definition of “identifiable minor” begins by stating that a minor is a “person.” 18 U.S.C. § 2256(9)(A). The court found that indicates that “person” is meant to refer to an individual of any age, not just an adult.