Ex-Congressman Weiner Pleads Guilty in 'Sexting' Case: Sexting Law for Dummies

Former New York Congressman Anthony Weiner pled guilty in Manhattan federal court on charges of sending obscene material to a minor. A copy of the criminal information can be seen here. While most people don't even realize this is a crime, it carries a maximum sentence of up to 10 years imprisonment. The Department of Justice's press release can be seen here.

In a one-count criminal information, Weiner pled guilty to violating 18 U.S.C. §1470, Transfer of Obscene Material to Minors. Under federal law, this is a felony (punishable by more than one year in jail). The statute was enacted by Congress in 1998. 

What is obscene material, you might ask? While there is no bright-line definition of obscenity, in the case of Miller v. California, 413 U.S. 15 (1973), the United States Supreme Court established a three-part test to be used in determining whether something is obscene. Known as "the Miller Test," it provides as follows:

1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);

2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and

3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Any material that meets all three of these prongs can be considered obscene, and thereby illegal. 

Generally, possession of obscene material alone is not illegal. However, possession with intent to sell or distribute obscene material using means of interstate commerce is a crime. When the obscene material is sent to minors, the law punishes these acts much more harshly. Possession of obscene material with intent to sell or distribute under §1460 and 1466 is punishable by up to two years imprisonment, yet when the obscene material is given to a minor, the maximum term of imprisonment is multiplied by 5. Additionally, the person sending obscene material may be, and often is, required to register as a sex offender (as in the case of Anthony Weiner). 

'Sexting Under New York State Law'

New York state also has 'sexting' laws aimed at preventing the dissemination of obscene or indecent materials to minors.

Unlike the federal law, where obscenity is not defined by statute, the New York Penal Law does explicitly define what is considered unlawful. Penal Law §235.20 follows the three-prongs of the Miller Test and defines material that is "harmful to minors" as:  any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it:

1. Considered as a whole, appeals to the prurient interest in sex of minors; and

2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

3. Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.

As the use of mobile phones, social media, and the internet to disseminate obscene materials or engage in 'sexting' rises, the law must adapt to keep pace. 

As for Anthony Weiner, he is scheduled to be sentenced on September 8, 2017 and is facing between 21-27 months of incarceration, which he and his attorney agreed to in a plea deal. He must also surrender his passport, his iPhone, and register as a sex offender.

Weiner appeared before the Honorable Loretta A. Preska, Senior Judge of the United States District Court for Southern District of New York. Judge Preska is notable as being the presiding judge for Abduwali Muse's arraignment and sentencing. Muse was one of the pirates who hijacked the Maersk Alabama, which ended with Navy SEALS killing Muse's accomplices.