Sending an e-mail to the wrong address or leaving a phone message on the wrong voice mail can be embarrassing, especially if it was a message you didn't want anyone except the intended recipient to read or hear.
But what if a pornographic picture is accidentally sent by text message to the wrong cell phone? Is it a felony that rises to the level of criminal negligence?
That's the question being debated in West Jordan's 3rd District Court. The case involves a Utah man charged with dealing in harmful materials to a minor, a third-degree felony, after he allegedly sent a pornographic picture to the cell phone of someone he had never met. He said it was just a careless mistake. But the 17-year-old girl who received the text, and her mother, say otherwise.
"This type of stuff didn't happen when I was a kid. A picture like this being sent out … what in the heck is going on in our society that they think so casually of anatomy that they send pictures of anatomy over the cell phone like they're sending out pictures of their new car?" the mother said. The Deseret News is withholding the names of the victim and her mother for the protection of the girl.
The incident began last August when the teen victim was hosting a party at her mother's home. She received two picture texts that night from a number she did not recognize. The second text was pornographic.
"It was a picture of the male geneter (sic) area. I didn't really know what it was. Then I realized what it was," the girl testified during her preliminary hearing. "I got really grossed out and showed my mom."
"She brought her cell phone over and said, 'I think I got a naughty text,' " the mother said.
South Jordan police were called and eventually traced the picture back to the alleged sender. The 22-year-old man told investigators he did not know he sent the picture to the girl's phone, and it was not intended for her.
Prosecutors say the man was negligent in distributing the porn. Under the definition of dealing in material harmful to a minor in the Utah Code Book, someone is guilty of the crime when they either know the victim is minor or "having negligently failed to determine the proper age of a minor."
But defense attorney Michael Masse argued during the preliminary hearing the only thing his client was negligent of was bad dialing. The statute his client is charged under does not fit the crime, he argued.
"The statute doesn't cover this behavior; it simply doesn't," he said. "The crime does not fit the facts."
Masse used the scenario of an adult sending a pornographic picture to another adult, but instead someone else answers the phone and sees the picture. In that case, the person could only reasonably assume his adult friend would be the one answering.
"You have to intentionally distribute to a minor to make it a crime," Masse argued.
He said a person may think it's morally wrong to send another person a porn text, but the current statute "doesn't cover this type of behavior. It simply doesn't."
Rod Ybarra, with the Salt Lake District Attorney's Office, contends that a defendant doesn't have to actually "see" someone to be negligent. He pointed to the work done almost nightly by members of the Internet Crimes and Children Task Force who go online posing as juveniles, looking for adults who proposition them.
The victim's mother said whether the picture was sent to the wrong phone by accident or not, she believes a message needs to be sent that people shouldn't be exchanging porn using their cell phones.
"I don't want this person to do it again. I want him reprimanded," she said. "There are some things in life that have value. It's just a standard of decency that you don't do those things … you don't just send out body parts. Every new technology always has a way it's misused. People need to learn, if you're going to send your body parts to people, know who's on the other end of the darn cell phone."
Since her daughter's incident, the mother said she has heard similar stories from other parents. Some people might not think it's a big deal, she said, but added those people need to put themselves in the shoes of parents who are trying to protect their children.
"We had a name for people like that growing up. We called them perverts," she said.
The case is scheduled to be back in court Monday.
E-mail: preavy@desnews.com