This would be the perfect crime—if it weren't so pointless

|The Volokh Conspiracy |

The case is State v. C.M. (Fla. Ct. App. Jan. 7, 2015); I just learned about it today because it was noted on the Westlaw Bulletin. Florida law bars minors from sending each other obscene-as-to-minors images of nudity—whether their own nudity or someone else's—but makes a first offense into just a civil infraction. But apparently Florida law doesn't generally give any court jurisdiction over civil infractions involving juveniles, and this particular statute doesn't specifically give any court such jurisdiction. This means that juvenile sexting can't be prosecuted under this statute (at least until the legislature revises the statute), either as to first offenses, or as to second and later offenses (which would indeed be criminal, but for the inability to prosecute the first offense). [UPDATE: Just to be clear, they could indeed be prosecuted under other statutes, such as bans on child pornography, if the picture contains a lewd exhibition of genitals—even their own—or possibly under Florida's general obscenity-as-to-minors law, unless that law is found to be preempted by this statute when the defendant is a minor; the point is simply that this particular statute has proved to be unusable.]

Here's a passage from the opinion describing the facts:

[The defendant] allegedly sent an "SMS photograph of her own vagina to a classmate who is a 13 year old [] female." [The defendant] allegedly "admitted to sending the photograph … because she was 'bored.'"

And here's one with the court's legal analysis:

Under the delinquency statutes, the state attorney files a petition for delinquency in the circuit court to obtain "a finding that a child has committed a delinquent act or violation of law." … A "violation of law" or "delinquent act" is defined as "a violation of any law of this state, the United States, or any other state which is a misdemeanor or a felony or a violation of a county or municipal ordinance which would be punishable by incarceration if the violation were committed by an adult." …

In the present case, as admitted by the state, a first violation of the sexting statute is a noncriminal violation. A noncriminal violation does not constitute a crime. Thus, by definition, a first offense of sexting does not fit within the definition of a delinquent act or violation of law under section 985.03(57). Because appellee's alleged conduct does not fit within the statutory definition of a delinquent act or violation of law, a petition for delinquency is not the proper method to prosecute her alleged first offense of sexting. Therefore, the trial court properly dismissed the petition for delinquency.
The state below, and now on appeal, argues that the trial court's dismissal leaves it without a remedy. The state asserts that this court should authorize the use of a petition for delinquency, because it is the only method to determine if a noncriminal first offense of sexting has occurred. However, the legislature has crafted other statutes that provide detailed procedures for prosecuting juveniles accused of committing other noncriminal violations. [Footnote: For example, under Florida's curfew statute, a minor commits a noncriminal infraction and receives a written warning for a first violation, and a civil fine is imposed for subsequent violations. Florida's truancy statutes require minors to attend school regularly and are noncriminal in nature. Prosecution is commenced through a truancy petition, various sanctions can be imposed for violations, and the circuit court may use its contempt power to enforce those sanctions. Lastly, multiple statutes make it unlawful for minors to possess tobacco products, alcohol, and nicotine products. A minor in possession of these items commits a noncriminal violation and must sign and accept a civil citation, appear before court or pay a fine, and attend remedial [programming]. [Citing various statutory provisions throughout -EV.]]

Here, it is up to the legislature to draft statutes to effectuate the procedure for prosecuting a first offense of sexting. The courts "are not at liberty to add words to statutes that were not placed there by the Legislature. To do so, would be an abrogation of legislative power." …

Here, as previously stated, only the legislature can add to the sexting statute to set out the procedure for the prosecution and determination if there has been a violation of the first offense. Until that is effectuated by the legislature, we are bound to the letter of the law and "must apply a statute as [we] find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation."

UPDATE: The title of the post is something of a joke, but reader David Stein pointed out that I should be more precise. As I note in the bracketed UPDATE above, the case just means that this particular statute has proved to be unusable; but such behavior could also potentially be prosecuted under other statutes, such as bans on child pornography, if the picture contains a lewd exhibition of genitals—even the sender's own—or possibly under Florida's general obscenity-as-to-minors law, unless that law is found to be preempted by this statute when the defendant is a minor. (The preemption argument would be that the Legislature clearly showed an intent not to have minors prosecuted under the general obscenity-as-to-minors law, which makes any offense a felony, and that intent should be honored even if the statute that the Legislature enacted can't itself be enforced; I don't know whether that argument would be successful.)