In Minnesota Cybercrime Law: Stay Informed & Stay Up-to-date, we talked about various ways one can be charged with a crime involving computers/devices, the internet, and technology. In this section, we will focus more on the types of criminal sexual cybercrimes. Below are several types of such charges:
A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony:
soliciting a child or someone the person reasonably believes is a child to engage in sexual conduct;
engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct; or
distributing any material, language, or communication, including a photographic or video image, that relates to or describes sexual conduct to a child or someone the person reasonably believes is a child.
Mistake as to age is not a defense to a prosecution under this section. And fact that an undercover operative or law enforcement officer was involved in the detection or investigation of an offense under this section does not constitute a defense to a prosecution under this section.
A person convicted of this crime is guilty of a felony and may be sentenced to imprisonment for up to three years, or to payment of a fine of $5,000, or both. If convicted the person will also have to register as a predatory offender for at least 10 years.
Use of Minor-It is unlawful for a person to promote, employ, use or permit a minor to engage in or assist others to engage minors in posing or modeling alone or with others in any sexual performance or pornographic work if the person knows or has reason to know that the conduct intended is a sexual performance or a pornographic work. Any person who violates this subdivision is guilty of a felony and may be sentenced to imprisonment for ten years or to payment of a fine of $20,000 for the first offense and $40,000 for a second or subsequent offense, or both.
Operation or ownership of business- A person who owns or operates a business in which a pornographic work, as defined in this section, is disseminated to an adult or a minor or is reproduced, and who knows the content and character of the pornographic work disseminated or reproduced, is guilty of a felony and may be sentenced to imprisonment for ten years, or to payment of a fine of $20,000 for the first offense and $40,000 for a second or subsequent offense, or both.
Dissemination- A person who, knowing or with reason to know its content and character, disseminates for profit to an adult or a minor a pornographic work, as defined in this section, is guilty of a felony and may be sentenced to imprisonment for ten years, or to payment of a fine of $20,000 for the first offense and $40,000 for a second or subsequent offense, or both.
Consent is not a defense to this crime, nor is mistake of age. However, it is a defense if the person depicted was 18 years or older at the time of producing the work.
It is a felony to possess pornographic images or videos of minors, whether it’s an actual picture or on a computer, disc, hard drive, or any backup storage. It does not matter if the person consented to the picture, but it is an affirmative defense that the person/s depicted in the image/video are 18 or older.
Anyone convicted of this crime may be sentenced to imprisonment for five years and a fine $5,000 for a first offense, and for ten years and a fine of $10,000 for a second or subsequent offense or if the crime occurs when the defendant was required to register as a predatory offender.
It is a crime to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part, when:
the person is identifiable:
(i) from the image itself, by the person depicted in the image or by another person; or
(ii) from personal information displayed in connection with the image;
the actor knows or reasonably should know that the person depicted in the image does not consent to the dissemination; and
the image was obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.
A person convicted of this statute can be sentenced as a gross misdemeanor. However, under certain circumstances the conviction can be a felony, such as: the person depicted has a financial loss, the person who disseminate the image does so for profit, the actor uses an internet website, or another online application, or with the intent or harass a person, if the person has a prior conviction, or obtains the picture pursuant to a theft or invasion of privacy.
It is not a defense that the person consented to the capture or possession of the image.
It is a crime for any person knowingly to sell or loan for monetary consideration to a minor any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter as listed above, or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse which, taken as a whole, is harmful to minors.
It is crime for any person commercially and knowingly to exhibit or display any material which is harmful to minors in its content in any place of public accommodation where minors are or may be present and where minors are able to view the material unless each item is kept in a sealed wrapper at all times.
This statute does not say what is the penalty for violating this law. I also think that there are some constitutional challenges to this statute. For example, nudity is defined as follow:
"Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
I can think of many sculptures and paintings that hang in public and private places that are considered art, yet they would fall under this definition of nudity. This is where prosecutorial discretion is used, but not all prosecutors use this discretion appropriately.
If you have been charges with a cybercrime or have questions about cybercrimes, call Bruno Law at (763) 545-7900 or send us a message.
Related Articles and Resources: