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Case Law Update: Receiver Beware-The Broad Reach of Sexting Criminal Statute

Updated: Jan 9, 2021

Sexting has become more and more prominent in our society and is prominent among under-aged teenagers. In the recent opinion of the Colorado Supreme Court regarding sexting, 2019 CO 53, People in the Interest of T.B., the Court found that T.B., a fifteen year-old boy, solicited sexually exploitive images of two teen-aged girls, ages seventeen and fifteen, that he possessed for his overt sexual gratification under 18-6-403(3), C.R.S.

T.B. met the girls at a convention. After meeting them, they began texting with him. T.B. sent each girl a picture of his erect penis. In return, he asked them to send nude pictures of themselves. Both ultimately sent pictures of their breasts and one sent a picture that included her pubic area.

Section 18-6-403(3) was applied to T.B. The statute was amended after T.B. committed the offense. The statute as amended limits its application to juveniles. However, this modification was found not to apply in T.B.’s case. The Court rejected his argument that the images the girls sent needed to depict acts of child sexual abuse for the images to be considered “erotic nudity” and thus “sexually exploitive” under the statute. The Court also concluded that T.B. was a person involved under the statute because he had solicited the images via electronic media. They held that T.B. did not have to be depicted in the photos or be physically with the girls when the photos were taken to be considered a person involved.

But the case wasn’t without its dissent. Justice Fox, a female judge with the court of appeals, concluded that 18-6-403 was “not intended to reach ‘imprudent or irresponsible behavior by and among juveniles.”’ Rather, the purpose of child pornography laws was to prevent the abuse of children. Judge Fox also noted that in this case it was only the male perpetrator – and not the two girls who also had created and sent explicit images – who faced charges. Justices Gabriel and Hart, two Supreme Court justices, disagreed with the majority. They concluded that T.B. was not a person involved because T.B. did not verbally instruct the girls to take the pictures or assisted in orchestrating them – he merely asked the girls to send him nude selfies.

The lesson: in the careless world of electronic media, teenagers must be cautious regarding what they choose to do while using their various devices. Something that may seem innocuous may not be.


Elle J. Byram is a native Midwesterner, born and raised in the Kansas City area.  Elle earned her law degree at the University of California Davis, School of Law.  She earned her Bachelors in Psychology at the University of Colorado at Boulder as well as a Masters in clinical psychology at Pacific Graduate School of Psychology in Palo Alto, CA. Elle has worked for small and large firms doing litigation, corporate work and technology. 

Desiring to start her own practice, Elle stepped out of the corporate world in 2013 and began her own solo firm focused on family law, estate planning and probate administration. Elle's practice focuses primarily in family law, where Elle litigates divorces, represents victims of domestic violence and assists in every other aspect of family law. 

Elle recently joined the Colorado Collaborative Divorce Professionals group to find alternative means to resolve divorces amicably.  Most of Elle's practice is focused in the mountain and rural regions of Colorado.  Elle is licensed to practice law in Colorado, Kansas, Missouri, California.

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