Federal Age of Consent Compared to State

How does it work where there are different ages of consent from state to state?

At the federal level, the nationwide age of consent for any visual depiction is 18. A person, male or female, must be 18 years of age to lawfully consent to visual depictions of a sexual nature. In Kansas, the age of consent to engage in sexual activity is 16. At age 16, our legislature presumes that people are old enough and mature enough to decide whether or not they want to voluntarily engage in sexual activity. There’s no cut-off for the age of the other participant to the partner.

A 16-year-old can lawfully consent to sexual activity with a 60-year-old, but in no state can anyone under the age of eighteen consent to the creation of a visual depiction of that sexual activity. Even though it may be lawful for two 16-year-old juniors in high school to have a sexual relationship at least in the State of Kansas, it is unlawful for either one of them to use their little hand-held smartphone and make a visual depiction of that activity.

By contrast, in Missouri, the age of consent to sexual activity is 17 years.  That means, if a 17 year old High School Senior takes his 16 year old girlfriend to the Homecoming Dance and they end up engaging in sexual activity, it may or may not be a crime depending on which side of the state line the activity occurred.

Can A Child Receive Child Pornography Charges?

Do you think that becomes precarious? Since you mentioned that, I’ll go into it. The fact that high schoolers and middle schoolers nowadays are carrying around the smartphones and they’re able to take pictures and videos, and send them over to wherever they want. Does that become a little trickier?

Paul Cramm: That absolutely has. Early on, we would hear about cases from various jurisdictions where a prosecutor was trying to prosecute a 15-, 16-, 17-year-old high school student for having a picture of his girlfriend topless on his phone or some such as that. I think that public outcry against that type of prosecution was strong enough that few prosecutors will pursue those types of charges.
That doesn’t mean it doesn’t happen. I got a call from a rural county here in Kansas where that exact charge had been filed, and they’re pursuing that charge aggressively. It happens, but I don’t think it happens frequently. I think the big concern is that once that image has been transmitted, whether it’s a video clip or a still image, anyone who has that can do anything with it. If those images that were created by consenting 16-year-old, 17-year-old legal partners fall into the wrong hands, they now can be promulgated, traded, and sold as child pornography.

I think that the big concern there is just the permanent nature of the Internet, as far as archiving history. I think the authorities just want to make sure that young people are aware of that. It’s not up there for a little while. It’s up there forever.

For more information on successful defense of Federal Child Pornography charges, click here.