Paul D. Cramm

The Age Of Consent: Differences In State And Federal Law

The Age Of Consent: Differences In State And Federal Law Lawyer, Overland Park, KSAge of Consent – Differences in State and Federal Law

Every State has its own laws addressing the minimum age of ‘consent’ to sexual activity.  While many people see California as being one of the more ‘liberal’ states, the age of consent to sexual activity in California is 18.

In Kansas, the age of consent to sexual activity is 16.  In Missouri, the age of consent is 17.  That means if a 17-year-old high school senior takes his 16-year-old girlfriend to the homecoming dance and they engage in sexual activity afterward, that sexual activity may or may not be a crime, depending on which side of the state line the activity occurred – in KS the activity is lawful, while on the Missouri side of the state line, the 17 year old senior has committed indecent liberties with his 16 year old date.

Minors And Child Pornography Charges

Even though the age of consent to actually engage in sexual activity varies from state to state, the age of consent to to create any sexually explicit visual depiction is 18.  This is true at the federal level and in all states.  This means a person must be at least 18 years old to lawfully consent to the creation of any sexually oriented visual depictions.  This includes a simple impromptu topless ‘selfie’ in the mirror – or a graphic video depicting penetrative sexual activity.

Even though it may be lawful in the State of Kansas for two 16-year-old juniors in high school to have a sexual relationship, it is unlawful for either one of them to make a visual depiction of that activity.  With the proliferation of smartphones with high resolution cameras and instantaneous file sharing capabilities, there were countless incidence of high school teenagers in Kansas taking nude selfies – only to find that those files had been shared (and re-shared) with virtually every student in their class.  Many prosecutors were understandably hesitant to file these cases, facing strong backlash from concerned parents with children facing criminal charges that required Sex Offender Registration.  In response, the Kansas Legislature codified in K.S.A. 21-5510(e) as follows: “The provisions of this section shall not apply to possession of a visual depiction of a child in a state of nudity if the person possessing such visual depiction is the child who is the subject of such visual depiction.”

Notwithstanding the statutory exception for the minor who actually ‘created’ the image (took the selfie) the exception does NOT apply to any other person who possesses the image.  So if a high school girl takes a topless selfie and sends it to her boyfriend who proudly – but foolishly – shares it with his friends, the boyfriend and his friends are not protected by K.S.A. 21-5510(e).  The concern being that if the image falls into the wrong hands, it can be promulgated, traded, and sold online as child pornography.

If you are considering engaging in a sexual relationship with anyone – first and foremost, determine with certainty the age of consent to sexual activity in the jurisdiction where you intend to have the relationship.  Moreover, determine if there is a maximum age difference for participants under and over the age of 18.  For example, some states set the age of consent at 16 – but only if the older partner is not more than ‘X’ years older than the minor participant.  And by no means should you ever consider creating, receiving, or possessing sexually oriented photos or videos of a person under the age of 18 – regardless of whether or not that person willingly participates in the creation of the photo or the video.  Except for the rarest of statutory exemptions for the ‘person who is the subject of said visual depiction’ – creation and possession of such depictions is unlawful under all state laws and Federal law.

For more information on a successful defense of federal child pornography charges, click here.

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