What is Sextortion Under Federal Law?
While there isn't a specific federal statute explicitly defining and criminalizing "sextortion," federal prosecutors will use various existing laws to prosecute these cases depending on the specific circumstances. Since most cases of sextortion involve the use of some form of online communication, these offenses often qualify as federal crimes.
Sextortion is not just a crime; it's a serious federal offense that involves threatening to expose sexual images, videos, or other explicit materials of a victim unless the victim complies with specific demands. These demands can range from financial compensation to the creation of more explicit content or other specific actions. This offense is not only highly personal and invasive but also carries severe legal consequences.
In extortion and blackmail cases, for both adult and minor victims, sextortion can be prosecuted as extortion (18 U.S.C. § 875(d)), particularly if threats involve damaging the victim's reputation or disclosing private information.
In cyberstalking and hacking cases, prosecutors might also employ cyberstalking statutes and laws against hacking or unauthorized access to computer systems (e.g., Computer Fraud and Abuse Act) if those elements are involved. If the sextortion scheme involves interstate or foreign communication or the transfer of funds, wire fraud or money laundering statutes might also apply.
Notably, federal laws are broad. The lack of a specific sextortion law means prosecutors rely on a range of existing statutes that may or may not directly address the unique aspects of sextortion. Sentencing can be inconsistent due to the variety of charges and interpretations of existing laws. For example, a case might be prosecuted under cyberstalking laws if the threats were made online, or under extortion laws if money was demanded. This variety can lead to disparities between punishments for sextortion and comparable offenses.
Financial Sextortion
When perpetrators pose as someone else online to coerce victims into taking and sending sexually explicit photos and videos, and then immediately demand payment or threaten to release the photos, it's known as financially motivated sextortion. Victims often feel afraid to seek help. Predators are typically located outside the United States and often target children through the following:
- Social media platforms,
- Online games,
- Gaming consoles,
- Livestreaming,
- Video platforms, and
- Messaging apps.
Predators typically pretend to relate to victims, whether that's pretending to be their age, have similar interests, or live in the same area. The Federal Bureau of Investigation says they have seen a substantial increase in these financial sextortion cases targeting minor victims in the United States. Financial sextortion is different from traditional sextortion.
In these cases, the perpetrator receives sexually explicit material from the child and then threatens to release the material unless the victim sends money or gift cards. The amount requested varies, and the offender often releases the victim's sexually explicit material regardless of whether or not they receive payment. This threat has resulted in many deaths by suicide.
Federal Jurisdiction
In many cases, the crime of sextortion falls under federal jurisdiction, which means if so accused, you could face significantly higher penalties upon conviction than if you were charged at the state level.
The FBI has seen a significant increase in the number of cases involving children and teens being threatened and coerced into sending explicit images online. They are actively and diligently working to combat these cases and protect potential victims.
Sextortion can begin on any website, app, messaging platform, or game where people meet and communicate. Sometimes, the initial contact from a perpetrator will be a threat. They might claim to have already a revealing picture or video of a minor that will be shared if the victim does not send more pictures.
Often, it starts when minors believe they are communicating with someone their age who is interested in a relationship or with someone who is offering something of value. After the perpetrator has some videos or pictures, they threaten to publish that content or threaten violence to get the victim to produce more images. The shame, fear, and confusion children feel when they are caught in this cycle often prevents them from asking for help or reporting the abuse.
Sextortion as a Federal Crime
Sextortion falls under federal jurisdiction when specific conditions are met, such as under the following circumstances:
- Crossing state lines during the execution of the offense, whether it involves communicating with the victim in another state, physically crossing state lines, or using interstate communications.
- Use of federal infrastructure or interstate systems, such as the internet, email servers, or social media platforms, which operate across state or national boundaries.
- Targeting minors, which initiates federal statutes designed to protect children from exploitation.
Federal sentencing guidelines allow for increased penalties under specific conditions, such as targeting vulnerable individuals, such as minors or people with disabilities. There are also increased penalties when there is the use of violence or threats of violence in conjunction with sextortion, repeat offenses, or a prior criminal history.
Federal penalties for sextortion vary significantly depending on the charges and the victim's age. Additionally, convicted offenders face potential civil suits from victims seeking damages for emotional distress, financial harm, or reputational damage. This provides a potential avenue for victims to seek justice and compensation, empowering them in their recovery.
As noted, sextortion is not directly defined under federal criminal statutes. However, this federal offense is typically charged by federal prosecutors using other statutes, such as cyberstalking, extortion, threats, and exploitation of vulnerable individuals. A review of each federal law is discussed below.
Sexual Exploitation of Children
When sextortion involves minors under 18, harsher sentencing guidelines come into play. Under this law, coercing a minor into producing explicit content or threatening to disseminate such content constitutes sexual exploitation. Prosecution does not require physical contact, as the use of digital media suffices.
A conviction results in a mandatory minimum sentence of 15 years in prison, which can be extended up to 30 years. The law reflects the significant moral and societal harm caused by the exploitation of minors.
18 U.S.C. 2251 Sexual exploitation of children law says, " (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed."
Cyberstalking (18 U.S.C. § 2261A)
Cyberstalking laws cover the use of electronic communications to harass, intimidate, or cause distress to another person. Sextortion falls under this definition when it involves repeated and intentional efforts to coerce a victim through digital channels.
A conviction under this federal statute can result in a prison term of up to five years. However, if the victim is a minor or if the offense leads to bodily harm or death, the sentence may be significantly increased.
18 U.S.C. 1161A Staking law says, " Whoever (1) travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that-
(A) places that person in reasonable fear of the death of, or serious bodily injury to (i) that person, (ii) an immediate family member (as defined in section 115) of that person, (iii) a spouse or intimate partner of that person...."
Computer Fraud and Abuse Act
Sextortion cases often involve unauthorized access to a victim's digital devices or accounts to obtain explicit content. If a perpetrator hacks into computers, phones, cloud storage, or social media profiles to obtain private materials, these actions fall under the CFAA.
Convictions for computer hacking under the CFAA can result in sentences of up to 10 years in prison, with enhanced penalties if the unauthorized access causes significant harm or loss.
18 U.S. Code 1030 Fraud and related activity in connection with computers law says, "(a) Whoever, (1) having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it."
Blackmail (18 U.S.C. § 873)
Blackmail, also known as extortion, is the act of obtaining something, typically money or property, through the use of threats or intimidation. In sextortion cases, threatening to release explicit content if the victim does not comply with their demands often meets this criterion. Blackmail can result in imprisonment for up to five years, fines, and restitution to the victim, depending on the circumstances of the case.
18 U.S. Code 873 Blackmail law says, "Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both."
Interstate Communications to Extort
The Interstate Communications Act makes it a crime to use telecommunications to send threats, including threats to release explicit content, with the intent to extort anything of value from the victim. Anyone convicted under this statute faces up to two years in prison per offense. The sentence can be longer depending on the severity of the threats and demands.
18 U.S.C. 875 Interstate communications law says, "(a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
(b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both…."
Wire Fraud (18 U.S.C. § 1343)
Wire fraud is described as using electronic communication, such as email, phone calls, or social media, to commit fraud. In sextortion cases, this may involve deceiving victims into sending explicit content or money by posing as someone else.
The penalties for wire fraud can result in up to 20 years in prison and fines. However, sentences can be increased if the fraudulent activity involves a financial institution or causes significant financial loss.
18 U.S. Code 1343 Fraud by wire, radio, or television law says, "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both."
Defenses Against Sextortion
Facing accusations of federal sextortion can be intimidating, but there are some potential strategies a federal criminal defense lawyer can use against sextortion charges, as discussed below.
Perhaps we can argue that there is a lack of evidence. The federal prosecution must prove every element of the charged offense beyond a reasonable doubt. If the evidence is insufficient to meet this standard, the charges might be dismissed.
Perhaps we can argue mistaken identity. Because of sextortion's digital nature, the wrong person may be accused. If we can show that you were not involved in the offense, the charges could be dismissed.
Perhaps we can argue that a constitutional right was violated. If the evidence was obtained in violation of your constitutional rights, such as an illegal search and seizure, we might be able to have that evidence suppressed.
Since a sextortion conviction can seriously impact your future, it's crucial to seek competent legal representation to safeguard your rights and navigate the complexities of the legal system. For more information, contact our criminal defense law firm, Cron, Israels & Stark, located in Los Angeles, CA.
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