South Florida Cyber Crimes Criminal Defense Attorney on ‘Sexting’ Prosecution for School Administrator

March 9, 2009 by David S. Seltzer

As a Miami cyber crimes criminal defense lawyer, I have followed the ongoing media coverage of “sexting” with great interest. Sexting is the name the media uses for the practice among teenagers of taking naked or near-naked photos using a cell phone or other device, then text messaging or emailing them to boyfriends and girlfriends. When adult authority figures find out, some of these teens have ended up charged with manufacturing or possession of child pornography, even though the “victims” are the same age, took the photos voluntarily and frequently photographed themselves.

The phenomenon may have taken on an added twist in Virginia. According to a March 7 Washington Post article, an assistant high school principal in Reston is being prosecuted for possessing an “inappropriate” photo of a student taken by another student. Ting-Yi Oei was arrested Aug. 20 and charged with possession of child pornography, as well as two counts of contributing to the delinquency of a minor. Oei’s defense attorney has told the court that he possessed the photo as part of a school investigation into students circulating nude photographs. Nonetheless, he faces a felony charge carrying up to five years in prison.

There isn’t enough information in the article to tell how credible each side’s claims are; the case has not yet gone to trial. However, if Oei truly possessed the photo only because of an investigation, this would seem like a case of prosecutors gone wild. Keeping order at the school is part of a school administrator’s job. Judging by the number of cases of sexting reported in the media, Oei cannot be the first school official to confiscate a phone with naughty pictures on it. The sheriff’s office also originally charged him with failure to report child abuse to parents and authorities. That charge was later dropped, possibly after prosecutors realized that child abuse is not the issue when one minor takes nude photos of another.

If Oei is successfully prosecuted for simply doing his job, it could set a dangerous precedent for all other school officials -- at least in Virginia -- who try to handle sexting problems on their own. And that, in turn, could be dangerous to students accused of taking or possessing the photos. If Florida school administrators risk criminal charges for failing to get authorities involved in sexting cases early, I would have to advise them, as a South Florida cyber crimes criminal defense lawyer, to call law enforcement early in all sexting matters. That would mean that teenagers could end up charged with serious child pornography crimes, rather than having their cases resolved at school.

Here in South Florida, each count of child pornography possession is a third-degree felony carrying up to five years in prison, plus lifelong sex offender registration and other penalties. As I have said before on this blog, I feel that child pornography charges do not fit the crime when minors are accused of voluntarily taking nude photos of themselves, or possessing and transmitting such photos. As a Fort Lauderdale cyber crimes criminal defense attorney, I believe the penalties for a child pornography conviction are inappropriate for these teens. That would be even truer for administrators whose only “crime” was trying to maintain discipline at their schools.