Emily L. Evett

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Jack and Jane are high school sweethearts. Jane is a sixteen-year-old high school junior, and Jack is a nineteen year old freshman in college. Last night, the teenage couple had sexual intercourse. Tonight, they decide to send sexually suggestive photographs to each other using their cell phones. Neither Jack nor Jane sent the photographs to anyone else. In Georgia, no crime was committed by either of them when they had sexual intercourse because Jane is over the age of sixteen. But, Jack committed a misdemeanor of high and aggravated nature when he sent a sexually explicit photograph of himself to Jane. After he receives the sexually explicit picture of Jane, he will have committed a felony if he decides to save the photograph onto his cell phone or computer. Jane has committed a simple misdemeanor for taking and sending her picture, but committed no crime by receiving and saving Jack's picture.

This scenario demonstrates the major inconsistency in Georgia's statutory scheme relating to minors engaging in sexually-related conduct. The couple can have sex without any legal repercussions because the legal age of consent in Georgia is sixteen years old; thus, Jane can legally consent to engaging in any type of in-person physical conduct that she wishes, regardless of her partner's age. However, a major issue arises when that same sixteen-year-old sends sexually explicit photographs of herself or himself. This issue arises because any photograph of a person under the age of eighteen engaging in sexual conduct is considered to be child pornography under Georgia law. Further, sending a sexually explicit photograph of someone under the age of eighteen is deemed sexual exploitation of the child. This outcome stands even though Jack has not committed child molestation, which is defined as sending sexually-elicit photographs to a person under the age of sixteen.

Part II of this Comment delves into the intricacies of this statutorial inconsistency, noting the history and purposes behind Georgia's child pornography laws, as well as the technological advances that have some critics arguing that "sexting" is more reprehensible and dangerous than actual physical sex. Specifically, this Comment examines each statute in Georgia that contributes to these differences, noting how each statute would affect Jack and Jane, referenced above. Lastly, Part III of this Comment discusses how other states have ironed-out these punishment issues, noting how scholars would deal with the current statutes, and urging the Georgia General Assembly to amend the Georgia Code, making the age of consent for all sexually-related conduct-both physical and virtual-uniform under each law.

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