What is Sexting? Is it Illegal?

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Sexting has gained in popularity in the last decade, despite potentially serious consequences. As the use of mobile phones has soared, so has all sorts of texting activity, including the sending of sexually explicit messages via text. While the legality of sexting, a type of Internet sex crime in many cases, will depend upon the situation and who is involved, experts report that many possible repercussions can result from the activity, such as embarrassment, humiliation and loss of friendship. But these are not the only possible consequences. Sexting can lead to damaged reputations and even legal consequences in some cases.

States and Sexting Laws

Many states now have laws that regulate sexting, as well as the federal government. Anyone who sends or receives sexually explicit text or photos with a person under the age of 18 can be prosecuted under either state or federal law. Because sexting is so popular with adolescents, many states have specific laws for people who are under 17 or 18. Many other states are weighing legislation that will establish potential penalties for those under 18 such as fines, probation, warnings and juvenile detention. Some of the states that have laws against sexting include:

  • Arizona
  • Arkansas
  • Connecticut
  • Florida
  • Georgia
  • Hawaii
  • Illinois
  • Louisiana
  • Nebraska
  • Nevada
  • New Jersey

Not every state has specific laws against sexting at this time. In states that do not have specific laws governing sexting, this type of illegal activity may fall under child pornography laws that could lead to felony charges and registration as a sex offender.

Many believe that child porn laws should not be used with sexting cases that occur with minors. But it is generally left to the discretion of prosecutors whether or not to bring such charges or not. Some legislators and local prosecutors take a more aggressive approach to sexting and could prosecute people who send or receive such images using child porn laws. Others may try to use probation and other diversionary options to give minors a second chance. Other jurisdictions may in some cases even decriminalize sexting when it is done by minors to other minors.

It is helpful to look at how individual states view sexting to see the type of punishments that are possible:

  • Texas: Sexting between minors is a misdemeanor; punishment is taking a state sponsored educational class on the dangers of sexting. Repeat offenders can receive jail time. A person over the age of 18 who sexts with a minor under 18 will be charged under child pornography laws, and can receive up to 20 years in jail and fines.
  • California: Recently proposed a bill that makes it illegal for minors to engage in sexts with another minor. But if the offender is under 18, punishment is community service and counseling. For a person over 18 who sexts with a minor, he or she is prosecuted under child pornography laws. Punishment is up to six years in prison and a fine up to $100,000.

Legal Problems With Sexting

The New York Times recently noted that teenagers who engage in sexting are in a very delicate legal situation. In most states, teenagers who are only a few years apart in age can have consensual sex. But if they create and share sexually explicit images, they are in fact producing and distributing child pornography. The child pornography laws that cover this scenario were passed many years ago, and were only intended to be applied to adults who exploited children, and require those who were convicted to register as sex offenders.

In the past, the newspaper continues, lovers would write each other love letters, send Polaroids by mail and engage in phone sex. But today, this type of sex-related communication is in digital format. Many states have recognized that sexting is a normal activity for many teenagers; it is estimated that up to ⅓ of people 16 and 17 have sent sexts. Thus, many states have set up new sexting laws that have lesser penalties to attempt to prevent teen lives from being ruined from engaging in this common activity.

There are other factors involved in legal implications of sexting as well. A 2013 study based upon 380 interviews of state prosecutors who had worked on crimes against children cases involving technology found that 60% of them had handled a sexting case that involved minors. Almost 36% of state prosecutors in the study stated they had filed state charges in these cases, and 21% filed federal charges. Most of those charged with felonies were charged with child pornography production, and 16% of the sexting cases resulted in being required to register as a sex offender.

In cases where charges were filed, 60% had minors charged with felonies relating to sexting. Almost 85% of them were charged with felony child pornography production. Sixteen percent of the state prosecutors reported the charges were brought in cases where images did not even show sexually explicit conduct or the genitals themselves.

Most state prosecutors had sexting cases resolved with a plea agreement or in juvenile court. Approximately 50% of the cases were sent to a diversion program, 26% of the charges were dismissed, and 4% went to criminal trial. To file criminal charges, prosecutors stated they would have to see an additional offense, such as harassment or stalking. In juvenile sexting cases that were criminally charged, exacerbating circumstances were usually required, such as bullying, coercion, harassment or malicious intent.

Sexting Rates Among Minors

Minors who engage in sexting has been estimated between 4% and 25%. The rate is largely affected by the age of the children who are asked, what the definition of sexting is, socioeconomic status, the size of the sample and when the study was conducted.

A telephone survey in 2009 by the Pew Research Center determined that 4% of people from 12 to 17 with a cell phone and have nude or almost nude images or videos of themselves to others. Of the 800 minors surveyed in three cities, 15% stated they had received these images from someone they knew. A 2012 national survey by phone of 1560 youths from 10 to 17 determined that 2.5% of youths had created nude or nearly nude images in the past year.

Another study in 2013 of 600 high school students of a single private high school in the southwestern US found that almost 20% of participants claimed they had sent a sexually explicit message of themselves by cell phone. Almost twice that many reported they had sent sexually explicit images by cell phone, and of those, 25% said they had forwarded images to others.

Sexting Laws Conclusion

The bottom line on sexting is that laws in this area are only now being developed and can vary widely by state. Depending upon your age and offense, there could be serious consequences for sexting, such as fines, prison time and registering as a sex offender for life. Whether you are a grown adult or a minor, you may wish to rethink whether or not you want to send a sexually explicit text message. Doing so can end up affecting your life in ways you may not be able to imagine.

Sexting Cases in the News

References

Geoffrey Nathan, Esq.

About Geoffrey Nathan, Esq.

Geoffrey G Nathan is a top federal crimes lawyer and Chief Editor of FederalCharges.com. He is a licensed attorney in the Commonwealth of Massachusetts since 1988, admitted to practice in both Federal and State courts. If you have questions about your federal case he can help by calling 877.472.5775.