We’ve all known someone involved in one or two spicy scandals. But did you know that sending unsolicited sexual content is a valid reason that could get you on California’s Sex offender’s Registry?
While the general rule provides that sharing images between two consenting adults is legal, however, when a minor is involved, you could be charged for distribution and possession of child pornography? In addition, even when the victim is an adult, you can also face sexual harassment charges that could go on your permanent record. In this article, we’ll discuss why it’s a bad idea to send unsolicited pictures which are sexual.
Furthermore, the current law provides for a private cause of action against any person who knowingly shares material (an image) that shows an intimate body part of another person engaging in sexual conduct, provided that they knew or ought to have known that the other person reasonably believed that such material was to remain private.
Concerning this existing law, a bill was introduced by Senator Leyva on 7th December 2021 to outline a variety of remedies that a plaintiff may invoke in court for redress.
What Amounts to an Unsolicited Image?
In this regard, an image is considered unsolicited if the recipient of it:
- has not requested it;
- has not consented to its transmittal; or
- has expressly prohibited its transmittal.
An image includes a moving visual image but is not limited to it.
Elements of the Crime
The SB-53 seeks to introduce more remedies arising from a private cause of action against a person who shares unsolicited images through electronic media which depict:
- a person engaging in sexual intercourse;
- oral copulation ;
- sexual penetration;
- masturbation; or
- exposed genitals or anus of any person.
Remedies Introduced by the Bill
This bill would enable a plaintiff who suffers harm as a result of receiving such images to recover the following:
- economic and non-economic damages for emotional stress or statutory damages of a sum between $1,500 to $30,000;
- punitive damages;
- reasonable attorney’s fees and costs; and/or
- any other available relief, including injunctive reliefs.
A plaintiff has the right to pursue any or all of these remedies as they find appropriate.
Exceptions to the Bill
It should, however, be noted that the proposed amendment section does not extend to the following instances:
- Where an interest service provider, mobile data provider, or operator of an online or mobile application if the entity is transmitting r providing connectivity for electronic communication initiated by another person.
- Any service that transfers images upon demand, subscription, or advertising.
- Where a healthcare provider shares such images for genuine medical reasons.
- Where a person who has subscribed or consented to a service that transmits such images.
Sending unsolicited images to minors
PC 288.2 is most commonly used to prosecute adults who share explicit texts or photographs with minors.
This law makes it illegal to communicate explicit material to a juvenile to seduce the recipient by sexually stimulating oneself and/or the recipient.
It’s also worth noting that this law makes it illegal to communicate “harmful” material to a youngster. Sending unsolicited images is unquestionably included in the phrase “by any means.”
The term “seduce” refers to luring a minor into a sexual act, including physical touch.
Penalties for the criminal offense
The penalty for unlawfully sending unsolicited images varies depending on how the offense is prosecuted. In most cases, the court will consider factors like the age of the victim, the intent behind the act, or whether there were other acts like stalking. However, under the California Penal Code, these offenses might be charged as either wobbler offenses or misdemeanors.
In addition, the plaintiff or the victim of the case may bring civil lawsuits against the alleged perpetrator for emotional distress and other damages.
If the bill is enacted into law, sending unsolicited images will attract more legal penalties on the defendant and afford the plaintiff a wide selection of remedies. This will be far less complicated than criminal charges where a minor is involved; we highly advise reaching out to an experienced lawyer who can help you navigate your case to success because of how complex such claims are. The Criminal Defense Heroes P.C. has a team of experienced attorneys willing to fight for your case until you get a favorable outcome. Do you also think you wrongfully committed a sex crime? Reach out to us at +323-529-3660 and find out if you can get paid!