North Dakota sexual-performance charge guide
Use of a Minor in a Sexual Performance in North Dakota
N.D.C.C. § 12.1-27.2-02 is a class A felony statute with two subsections and five practical liability theories. Subsection 1 addresses a person who, knowing the character and content of a performance, employs, authorizes, or induces a minor to engage in sexual conduct during the performance, plus a parent, legal guardian, or custodian who knowingly consents to that participation. Subsection 2 addresses an adult who portrays the adult as a minor with the intent to persuade, induce, entice, or coerce a minor to engage in a sexual performance. Those theories do not share every element. The offense date, precise verb, statutory definitions, identity and age evidence, complete communications, device attribution, creation history, and chapter-wide defenses must be analyzed before the accusation can be understood.
You will work directly with me.
If you hire me, I identify the exact subsection, verb, performance, alleged sexual-conduct category, person or image the State calls a minor, and proof of knowledge or intent. I compare the complaint with original messages, complete media, account records, extraction reports, search authority, interview recordings, age evidence, role records, and the law in force on the alleged date. I do not treat a forensic label, cropped screenshot, or investigator’s conclusion as a substitute for the statutory analysis.
Five theories require five separate proof maps
| theory | Required conduct and mental state | Evidence questions |
|---|---|---|
| Employing | Knowing the performance’s character and content, the person employs a minor to engage in sexual conduct during it. | Who retained, arranged, paid, directed, scheduled, or otherwise used the minor’s services; what the accused knew and when. |
| Authorizing | With the same knowledge, the person authorizes the minor to engage in the conduct during the performance. | What authority the person actually held, what was approved, the scope and timing of approval, and whether another person acted independently. |
| Inducing | With the same knowledge, the person induces the minor to engage in the conduct during the performance. | The complete request, persuasion, incentives, pressure, chronology, response, and connection between the accused’s conduct and participation. |
| Parent, guardian, or custodian consent | A parent, legal guardian, or custodian, knowing the character and content, consents to the minor’s participation in sexual conduct during the performance. | Legal or factual status, actual knowledge, what was consented to, and whether silence, presence, or later discovery proves consent. |
| Adult portrayal as a minor | An adult portrays the adult as a minor with intent to persuade, induce, entice, or coerce a minor to engage in a sexual performance. | Adult and minor identity, alleged portrayal, complete communication context, specified intent, account control, and whether the communication concerned the defined performance. |
The prosecution should not be permitted to slide between verbs without identifying the factual theory. “Employ” can involve an arrangement or use of services; “authorize” calls for evidence of actual or claimed authority; “induce” focuses on causing or persuading participation; custodial consent requires both a qualifying role and consent; and subsection 2 requires an adult’s portrayal as a minor plus a specific objective. Evidence supporting one concept does not automatically prove another.
Subsection 1 expressly requires knowledge of the character and content of the performance. That language calls for proof of what the accused understood the visual representation would contain, not merely awareness that a camera, phone, stage, or social platform existed. Subsection 2 instead expressly requires intent to persuade, induce, entice, or coerce. A careless, offensive, or deceptive communication is not enough unless the State proves the charged intent and the defined target conduct.
The State also must prove identity and venue, and it must connect the accused to each charged act. A profile name, device location, subscriber record, IP address, face in a photograph, voice, payment record, or admission may be important without being conclusive by itself. Shared devices, recycled numbers, linked cloud accounts, remote access, impersonation, automated synchronization, editing, and incomplete exports can create attribution questions. The evidence must be considered as one chronology rather than as isolated screenshots.
The definitions determine what the accusation actually means
“Performance” is visual and can be only part of a larger work
The current statute defines performance as a play, motion picture, photograph, dance, other visual representation, or any part of a performance. The definition reaches more than a staged event, but it still requires the State to identify a visual representation or qualifying part. A conversation alone is not automatically a completed performance. Under subsection 2, however, the conversation itself may be alleged as the means of persuasion even if the planned performance never occurs. That distinction affects completed-offense, attempt, solicitation, and evidentiary analysis.
“Minor” currently includes a person and specified computer-generated imagery
Current § 12.1-27.2-01 defines a minor as an individual under eighteen or a computer-generated image used, created, adapted, altered, or modified to appear to depict an individual under eighteen through face, likeness, or another distinguishing characteristic. Enrolled 2025 House Bill 1386 added the computer-generated-image definition and revised the chapter definition of “minor.” That is offense-date-sensitive language: it should not be projected backward onto conduct governed by an earlier version. For a real person, birth records, reliable account records, testimony, and the age-proof rule may matter. For a generated or altered image, the creation process, source media, model output, editing history, distinguishing characteristics, and applicable effective date require separate proof.
“Sexual conduct” contains eight current categories
The chapter currently lists actual or simulated sexual intercourse; statutorily defined sodomy; sexual bestiality; masturbation; statutorily defined sadomasochistic abuse; lewd exhibition of the buttocks, breasts, or genitals; a nude or partially denuded human figure depicted for the purpose of sexual stimulation or gratification of a viewer; and physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or breasts. The statute states that it is unnecessary for the minor to know the minor is participating in the described conduct or any aspect of it.
Those categories should not be replaced with a police report’s label such as “explicit,” “sexualized,” “inappropriate,” or “pornographic.” For the lewd-exhibition theory, framing, pose, focus, context, instructions, duration, surrounding communications, and the complete work can matter. For the purpose-limited nude or partially denuded category, the statute expressly asks why the depiction was made or presented. For physical contact, the actual depicted contact must be identified. The factfinder must apply the enacted category, not react only to the allegation’s gravity.
Actual and simulated conduct are both addressed, but “simulated” is defined
Current law defines simulated as an explicit depiction of listed conduct that creates the appearance of actual sexual conduct and exhibits a nude or partially denuded human figure as cross-referenced by statute. Editing, camera angle, animation, generated imagery, compositing, costumes, or acting does not make every depiction “simulated” within this definition. The State should identify the precise category and explain how the complete material satisfies it.
A “sexual performance” combines the defined pieces
A sexual performance is a performance that includes sexual conduct by a minor. Thus, the analysis is cumulative: a qualifying visual representation, one of the defined sexual-conduct categories, and a minor under the offense-date definition. Age, image identity, depiction, conduct, and the accused’s role remain separate questions. A young-looking adult, an ambiguous image, a nonvisual exchange, or nudity without the current purpose or conduct requirements should not be assumed to meet every definition.
Which theory?
Identify employ, authorize, induce, custodial consent, or adult portrayal rather than treating the statute as one generalized accusation.
What performance?
Preserve the complete visual work and creation history; a thumbnail, report description, or cropped screenshot can omit decisive context.
What knowledge or intent?
Reconstruct what the accused knew about the performance or intended through the alleged portrayal at the relevant time.
Whose account or device?
Test access, attribution, extraction method, cloud synchronization, metadata, and alternative users before assigning an act to a person.
How I analyze the evidence
1. Preserve the entire communication, not a selection
A complete export may show earlier identity statements, age discussions, refusals, jokes, role-play, payment terms, pressure, changes in subject, attachments, deletions, timestamps, edits, reactions, forwarded material, and who initiated each exchange. Screenshots can omit account identifiers, adjacent messages, time-zone information, reply relationships, and metadata. I seek the native or platform production when available, document how law enforcement captured it, and compare both participants’ records.
2. Separate account ownership from authorship
A subscriber name can identify who opened an account without proving who sent a particular message. A device can contain an item because of automatic download, cloud restoration, linked accounts, group messages, browser caching, backup, or another user. Attribution can depend on login history, IP records, device identifiers, possession at the relevant time, writing patterns, payment records, contacts, photographs, admissions, and corroborating conduct. Each source has limits and should be placed on the same timeline.
3. Reconstruct creation, alteration, and provenance
For photographs, video, generated imagery, or edited media, I look for the original file, metadata, hash values, thumbnails, derivative files, application history, model or editing artifacts, cloud versions, upload and download records, and chain of custody. A forensic examiner should be able to explain what the tool extracted, what it inferred, which settings were used, and whether the exhibit is original, transformed, screen-recorded, recompressed, or incomplete.
4. Prove the person or image called a minor
For a real person, age can be shown through admissible records and the methods permitted by § 12.1-27.2-06. Appearance evidence is allowed, but its weight depends on quality and context. For current computer-generated-image allegations, the State must prove the statutory image characteristics and current effective-date law. An investigator’s estimate, a profile age, a statement by an unknown account, or an image classifier should not be treated as automatically conclusive.
5. Match every act to the correct time and statute
The timing of creation, request, authorization, transmission, download, discovery, and possession can differ. The performance may predate the accused’s alleged involvement. The charged conduct may straddle an amendment. A file-system timestamp can reflect copying or synchronization rather than creation. I build an event chronology and identify the statutory text in effect for each charged act before applying current definitions or classifications.
6. Review interviews in full
Reports often compress questions, qualifications, uncertainty, and the difference between recognizing an account and admitting authorship. I compare body-camera and recorded interviews with the written summary. Custody, Miranda, invocation, voluntariness, promises, fatigue, intoxication, medication, language, and whether an officer disclosed evidence or supplied facts can affect admissibility and weight. A statement acknowledging receipt does not necessarily admit employment, authorization, inducement, custodial consent, or impersonation intent.
7. Examine the search authority
Digital evidence may come from a device warrant, account warrant, consent, probation search, exigency claim, provider report, private search, or another device. North Dakota Rule of Criminal Procedure 41 governs warrant and suppression procedure. I compare the affidavit with what officers knew at the time, the place and accounts described, date limits, particularity, seizure and later search steps, execution record, forensic method, and whether the examination exceeded authorized scope. Suppression is not automatic after a flaw, and a lawful search does not prove the charged elements.
8. Demand discovery and authenticate each exhibit
Rule 16 covers categories including defendant statements, documents and objects, examinations and tests, expert material, and witness information under its terms. N.D.R.Ev. 901 requires evidence sufficient to support that an exhibit is what its proponent claims. Rule 1001 defines writings, recordings, photographs, and original-content concepts that matter when proving digital material. Authentication does not alone resolve hearsay, completeness, expert reliability, constitutional objections, or whether the exhibit proves the required mental state.
State v. Wiese, 2024 ND 39, involved different chapter offenses—promotion and possession—not this use-of-a-minor section. The Supreme Court considered online conversations, an account associated with the defendant, admissions, payment discussions, and circumstantial evidence when upholding the verdicts. The decision demonstrates why account and message evidence can be powerful; it does not eliminate the State’s obligation to prove the distinct theory and mental state charged under § 12.1-27.2-02.
A defense starts with the theory, not a slogan
Failure of proof is different from an affirmative defense
The defense can require the State to prove identity, the charged verb, knowledge or intent, minor status, the defined performance, and the defined sexual conduct beyond a reasonable doubt. That is not the same as admitting the elements and invoking an affirmative defense. The burden and instructions for an affirmative defense must be handled under North Dakota law, while the State retains its constitutional burden on offense elements.
The reasonable-age-belief defense has a statutory floor
Section 12.1-27.2-05 creates an affirmative defense when the defendant in good faith reasonably believed the person appearing in the performance was at least eighteen, but only if the minor was in fact at least fifteen. Evidence may include what the person said, profile information, identification, appearance, relationship history, third-party statements, context, and contradictory information known to the accused. The defense is unavailable under its text when the person was actually under fifteen. A bare claim of belief is not enough; good faith and objective reasonableness both require evidence.
The bona fide purpose defense has defined terms
The same section identifies a defense when material or a performance was disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other appropriate purpose by or to a physician, psychologist, sociologist, scientist, teacher, bona fide student or researcher, librarian, clergy member, prosecutor, judge, or similarly interested person. The purpose, actor, recipient, scope, handling, and necessity require proof. Possessing or sharing material while claiming curiosity or education does not automatically satisfy the defense, and its fit with the specific § 12.1-27.2-02 conduct must be analyzed rather than assumed.
A minor’s agreement is not a blanket defense
The statute criminalizes specified adult or other-person conduct involving a minor. A minor’s willingness, request, payment demand, relationship, or self-creation of material does not by itself erase employment, authorization, inducement, qualifying custodial consent, or subsection 2 intent. Those facts can still affect whether the accused caused or approved participation, what the accused knew or intended, how communications should be understood, and what evidence is credible. The legal analysis must distinguish relevance from a nonexistent general-consent defense.
No completed performance may matter differently under subsection 2
Subsection 2 targets an adult who portrays the adult as a minor with specified intent. Its text does not require that the minor actually create or participate in a performance. An abandoned or unsuccessful exchange therefore is not automatically outside the completed subsection 2 offense. By contrast, subsection 1 refers to a minor engaging in sexual conduct during a performance. The State’s selected subsection controls; attempt or solicitation principles should not be imported without identifying the actual charge.
Role and authority must be proved on the consent theory
The custodial-consent clause applies to a parent, legal guardian, or custodian. Birth and guardianship records, placement or custody orders, household facts, delegated care, and the statutory meaning of the alleged role may matter. Mere family relationship, presence, financial support, or association does not necessarily prove the charged status. Consent likewise requires evidence of agreement to participation with the required knowledge; negligence, failure to discover, or poor supervision should not silently substitute for knowing consent.
The maximum sentence is only one part of the exposure
| Issue | Current rule | Important limit or qualification |
|---|---|---|
| Offense class | Class A felony for each current § 12.1-27.2-02 theory. | 2015 N.D. Session Laws chapter 108 elevated subsection 1 from class B to class A and added subsection 2; offense date controls. |
| General ceiling | Up to twenty years’ imprisonment, a $20,000 fine, or both under § 12.1-32-01(2). | A maximum is not a prediction, presumptive outcome, or mandatory minimum. |
| Universal minimum | Section 12.1-27.2-02 states no minimum term applicable to every conviction. | Other proven charges or a separately applicable sentencing statute can change the analysis. |
| Presentence investigation | Section 12.1-32-02(11) requires a department presentence investigation and report before felony sentencing under § 12.1-27.2-02. | The report does not replace the right to correct disputed facts and present sentencing evidence. |
| Commercial or for-profit fine rule | Section 12.1-27.2-04.2 applies when the chapter offense occurred in qualifying commercial activity and the offender held the specified ownership, control, managerial, or nonwage financial interest. | Its “notwithstanding” language should be applied directly; the special fine should not be added mechanically to the general felony fine. |
| Registration | Chapter 12.1-27.2 is included in the statutory definition of sexual offender, and a felonious sexual offender must be ordered to register. | Duration and public disclosure depend on current law, risk level, history, and other specified facts. |
Current § 12.1-32-15 generally sets a fifteen-year registration period measured from sentence, deferred or suspended sentence, or release from incarceration, whichever is later; twenty-five years applies when the attorney general assigns moderate risk; and lifetime applies in specified repeat-offense, enumerated-offense, or high-risk circumstances. Registration includes extensive reporting requirements involving residence, employment, school, vehicles, online identities, travel, biometric information, and changes. The exact judgment, risk determination, location, tribal or interstate obligations, and law in effect must be reviewed before describing a particular person’s duties.
Interest of K.I.B., 2025 ND 157, concerned a juvenile adjudication under chapter 12.1-27.2. The Supreme Court held the registration statute did not authorize the deviation the juvenile court attempted. The case is important confirmation that the Legislature placed chapter 12.1-27.2 within sexual-offender registration law, but an adult prosecution and a juvenile proceeding follow different procedural alternatives. It should not be cited as an elements decision under § 12.1-27.2-02.
The commercial-activity provision also needs precision. For a first qualifying chapter offense, the current text states a fine not exceeding $10,000 for an individual or $25,000 for an entity. For a second or subsequent qualifying offense, it states a fine not exceeding $50,000 for an individual or $100,000 for an entity. Whether the provision displaces the otherwise applicable fine, and what counts as ownership, control, managerial responsibility, or a financial interest other than wages, should be resolved from the charging document, evidence, and current text—not assumed from the mere exchange of money.
Additional consequences may include restrictive release or probation conditions, device and internet conditions subject to lawful scope, treatment, no-contact orders, employment and professional-license effects, immigration consequences for a noncitizen, firearm disabilities from felony status, family-court consequences, and public-record effects. Some arise only after conviction; others can begin with release conditions. A page should not promise every consequence in every case, but it also should not describe a twenty-year felony as only a prison-and-fine question.
What to do before deciding how to respond
Get the exact charge and preserve the defense record
Obtain the complaint, warrant materials when available, release order, hearing notice, property receipt, and the precise subsection. Preserve full communications and original files without altering, forwarding, re-saving, or repeatedly opening sensitive material. Write a private chronology identifying devices, accounts, users, locations, dates, and how each record was created or received.
Address orders and account access immediately
Do not contact a protected person or witness, even to apologize or obtain context. Do not delete accounts, reset devices, change cloud settings to hide information, ask anyone to coordinate an account, or use another person to communicate. Preserve credentials for counsel without sending passwords in ordinary email or text. If an employer, school, licensing body, military command, immigration agency, or child-protection agency is involved, coordinate responses so one statement does not damage another proceeding.
Evaluate litigation and resolution from the same proof map
A reliable recommendation requires the strongest admissible proof for each element, viable suppression and evidentiary issues, realistic expert needs, registration consequences, sentencing record, and the client’s priorities. Preparing the case for litigation can improve negotiation; understanding the sentencing and registration framework can clarify whether a proposed resolution actually solves the client’s most serious risk.
Frequently asked questions
Is this always a class A felony?
Each completed theory in current § 12.1-27.2-02 is classified as a class A felony. The law changed in 2015, and the chapter’s definitions have changed since, so the alleged offense date and exact charge must be checked before applying current classification or definitions.
Does the State have to prove a completed performance under subsection 2?
Subsection 2 criminalizes an adult portraying the adult as a minor with intent to persuade, induce, entice, or coerce a minor to engage in a sexual performance. Its text does not require the intended performance to be completed. Subsection 1 uses different language and requires participation in sexual conduct during a performance.
Does a minor’s agreement defeat the charge?
No general consent defense appears in the statute. A minor’s words and conduct can be relevant to causation, context, intent, credibility, and the charged verb, but they do not automatically legalize employing, authorizing, inducing, qualifying custodial consent, or intentional adult impersonation.
What if I reasonably believed the person was an adult?
Section 12.1-27.2-05 provides an affirmative defense for a good-faith reasonable belief that the person appearing in the performance was at least eighteen only when the minor was in fact at least fifteen. Both good faith and reasonableness require evidence; the defense’s statutory age floor is critical.
Can generated or altered imagery qualify?
Current law includes a specified computer-generated image within the definition of minor when it is used, created, adapted, altered, or modified to appear to depict someone under eighteen through face, likeness, or another distinguishing characteristic. That current definition is offense-date-sensitive and still requires proof of the other charged elements.
Will a conviction require registration?
Yes. Current § 12.1-32-15 defines a chapter 12.1-27.2 conviction as a sexual-offender conviction and requires registration for a felonious sexual offender. Duration and reporting details depend on risk level, history, release date, residence, and current law.
Is there a mandatory minimum prison term?
Section 12.1-27.2-02 states no minimum term applicable to every conviction. The current class A ceiling is twenty years and a $20,000 fine, or both. Other proven offenses or separately applicable sentencing statutes can alter the analysis.
What should I do with a device containing suspected material?
Do not delete, edit, forward, duplicate, or distribute the material. Preserve the device and account information, comply with court orders, and tell counsel where the material is located. Counsel can arrange lawful review and determine whether forensic preservation, a protective order, or expert access is appropriate.
A lawyer’s file review of Use of a Minor in a Sexual Performance in North Dakota
The first pass through a criminal file should be exact, not dramatic. I want the statute and subdivision, the alleged date, the conduct the State says satisfies each element, and the source for every fact that raises the degree or punishment.
Read the count as a set of propositions the State must prove
To understand Use of a Minor in a Sexual Performance in North Dakota, I start with N.D.C.C. §§ 12.1-27.2-01, 12.1-27.2-02, 12.1-27.2-04.2, 12.1-27.2-05, 12.1-27.2-06, and 12.1-32-15 and the version of the law in effect on the alleged date. The offense classification sets the outer framework, but it does not tell us what happened or what the state can prove. I then identify every fact that could change the charge or sentence and look for the record, testimony, or forensic evidence that supports—or contradicts—each one.
From there, I build a proof map. For every required element, I identify the witness, recording, document, test result, or admissible inference the prosecution would rely on, then compare that source with the rest of the file. This separates a disputed fact from a search, statement, or admissibility issue and keeps the analysis focused on problems that can actually affect the case.
The evidence I would ask for first
For Use of a Minor in a Sexual Performance in North Dakota, I would not begin with a canned list of defenses. I would begin with the source file: every recorded interview, complete message and social-media exports, device-extraction reports and underlying data, provider records, medical or forensic records, location information, witness timelines, prior statements, and the material needed to evaluate consent, age, authority, force, coercion, identification, and the scope of any search. A police summary can identify what an officer or witness says happened, but it cannot substitute for the recording, photograph, data, or document being summarized. The same is true of a complaint. It identifies the prosecution’s theory at the start of the case; it does not prove the theory.
I put those materials on one chronology. That lets me see what was known at each decision point, which account was contemporaneous, what appeared only after people spoke with one another, and where the record is silent. It also keeps an admissibility question separate from a factual one. A fact can be disputed even if the evidence was lawfully obtained. Evidence can also be accurate yet inadmissible for a particular purpose. Those are different arguments and should not be blurred together.
Read the charging document against the offense date
The alleged date matters because statutes, penalty thresholds, definitions, sentencing rules, and published decisions change. I save the version in force on that date and read the session-law history when the current online text is different. I also check whether a later amendment was merely clarifying or made a substantive change; that is a legal question, not an assumption. The same discipline applies to prior convictions and administrative events. A prior must fit the definition the charged statute actually uses, fall within any stated lookback period, and be proved by a reliable record.
I then compare the formal count with the probable-cause narrative and the discovery. If the prosecution’s theory shifts, I want the amended pleading and enough detail to prepare. If several factual alternatives are alleged, I identify whether they are separate elements, alternative means, enhancement facts, or merely evidentiary details. That distinction affects notice, motions, jury instructions, unanimity arguments, and how a verdict form should be read.
Separate an evidentiary weakness from a suppression issue
Not every troubling fact produces a motion to suppress. Suppression ordinarily requires a constitutional, statutory, or rule-based violation with a remedy that reaches the evidence at issue. A weak identification, an incomplete investigation, or a witness inconsistency may be powerful at trial without making evidence inadmissible. By contrast, a stop, search, interrogation, identification procedure, warrant, or test can raise a legal issue even when the resulting evidence appears incriminating. I analyze both tracks and do not promise dismissal simply because one problem exists.
For a search issue, I reconstruct what officers knew before each intrusion and what authority they claimed. For a statement, I examine custody, questioning, warnings, voluntariness, recording, and the complete context. For scientific or technical evidence, I request the method, underlying data, quality-control material, uncertainty information, and chain of custody. For hearsay or confrontation questions, I identify the actual statement, its purpose, the declarant, and the proposed foundation. Specificity matters; “the evidence is bad” is not a motion.
Prepare negotiation and trial at the same time
A plea decision should be compared with the case the State could present at trial, not with the complaint’s maximum penalty in isolation. I want to know the strongest admissible proof, the weakest required element, the realistic motion practice, the likely instructions, and the consequences of every proposed disposition. That includes custody, probation, treatment, restitution, driving, firearm restrictions, registration, employment or licensing, immigration consultation, family-court effects, and record consequences when they are actually triggered. I avoid telling a client that every collateral consequence applies to every conviction.
Trial preparation gives negotiation its credibility. Witness interviews, exhibit review, motions in limine, expert consultation, demonstrative evidence, jury instructions, and a clean theory of the case force both sides to confront what can be proved. Negotiation can continue while that work is underway. The two tracks are not opposites.
A case-law point worth keeping in its proper place
Appellate decisions matter, but a quotation should not be detached from the issue the court was deciding. In State v. Hartson, 2024 ND 78, ¶ 26, the North Dakota Supreme Court explained that, on a sufficiency challenge, “we do not weigh conflicting evidence, or judge the credibility of witnesses.” That is an appellate-review rule, not a reduction of the State’s burden at trial. At trial, the prosecution still must prove every element beyond a reasonable doubt. I cite the case for the point it actually decided and then return to the charged statute, the instructions, and the admissible evidence in the present file.
What I would want you to understand before choosing an outcome
You should be able to identify the exact charge, the facts that set its level, the disputed elements, the evidence that matters most, the motions that have a legal basis, the realistic trial issues, and the concrete effect of each proposed resolution. If an answer depends on a missing report, recording, expert opinion, or certified record, I will say so. An honest answer about what remains unknown is more useful than a confident guess.