It is important to first note that the exact legal definition for criminal sexting will depend on local state laws. However, in general sexting is defined as the act of transmitting sexually explicit messages, primarily through the use of cell phone messaging or other similar electronic devices to another person.
The messages that are sent usually contain illicit photographs or videos that depict the person that sent them. Examples of common mediums where sexting occurs include text messages, emails, or even social media.
Under both state and federal sexting laws, the act of sexting is legal if there are no minors involved, and the message exchange is between two consensual adults. However, the transmission of nonconsensual messages containing explicit material, or the transmission of sexually explicit material between and adult and a minor, or a minor to minor, are all federally unlawful acts.
Is Sexting Illegal?
As mentioned above, the act of sexting is not always an illegal act. For example, sexting between two consensual adults is not an illegal act. However, sending sexually explicit pictures from an adult to a minor is always a criminal act. As such, most states have laws that specifically address the transmission of sexually explicit messages from an adult to a minor or a minor to an adult.
In fact, one of the most commonly charged sexting crimes involves highschoolers that have reached the age of majority (i.e. 18 years of age) sending or receiving sexually explicit messages to a teen who has yet to reach the age of majority. In many cases sexting a minor crimes will also be charged based on the laws of child pornography.
What States Are Prosecuting Sexting Charges?
AS mentioned above, there are many states that have written criminal laws that impose criminal penalties for sexting. The laws on sexting in most states will typically fall under the umbrella of child pornography laws. However, many states have expanded their laws regarding sexting and the act of sexting is also contained in laws regarding obscenity, the distribution of obscene content, and revenge porn.
The following is a list of states that have laws that directly address the crime of sexting:
- New Jersey;
- New Mexico;
- New York;
- North Dakota;
- Rhode Island;
- South Dakota;
- Washington; and
- West Virginia.
In addition to the above 27 states that have laws that address when sexting is a crime, there are also numerous states that are considering criminalizing the act of sexting. However, once again, sexing may also be charged as a federal crime if it involves a minor taking part in a sexually explicit act or depicts a minor in a sexually explicit manner.
How Are Sexting Charges Proven?
Similar to other criminal charges, in order for an individual to be convicted of the crime of sexting, all of the criminal legal elements of the crime must be proven by the state prosecution beyond a reasonable doubt.
Once again, the exact legal elements for the criminal sexting will be dependent on local laws, or federal law. However, typically the following elements must be proven by the state prosecution in order to convict an individual for criminal sexting:
- A sexually explicit message was intentionally sent or received; and
- The message was not made between two consensual adults.
In order to prove the elements above, the state or federal prosecution will typically get an order to search the phone or electronic device of the individual alleged to have sent the content, as well as the individual that received the explicit content. The state or federal prosecution may also get an order to have the phone company or company in charge of the communication software to produce records that may have been deleted.
For example, a state prosecutor may get a subpoena to have phone records produced to prove the charges.
What Are the Penalties for a Sexting Charge?
In most states, criminal sexting is considered a felony. Once again, this is because many state sexting laws are under the umbrella of child pornography laws. As such, charges of criminal sexting often result in criminal charges similar to possession or distribution of child pornography. Criminal legal penalties will then differ depending on whether or not the parties to the crimes are adults or minors.
Criminal legal penalties for minors that engage in the act of sexting will often include:
- Warning: For first time offenders, juvenile judges will often give the juvenile a verbal warning that can later be upgraded if the act occurs again;
- Minor fines: Although criminal fines in each state differ, in many cases a first time offender will have to pay a criminal fine of $100 to $250. However, in some states and cases the fines may be much larger;
- Imprisonment: In some cases the juvenile offender may be imprisoned in a juvenile facility for a short period of time, such as 10 days;
- Community Service: In many cases, a juvenile will have to perform any number of community service hours based on a the judge’s discretion;
- Counseling: The court may also order the juvenile offender to attend court ordered therapy or counseling; and/or
- Probation: Finally, a juvenile offender may get assigned a probation officer from the court and must report to a probation officer on a daily basis for a specified period of time.
The legal consequences associated with sexting for adults may include:
- Imprisonment: An adult that is found guilty of possessing child pornography or sexting may be imprisoned for 5 years or more depending on the age and nature of the photos or messages that they transmitted or possess;
- Criminal Fines: Fines for criminal sexting involving an adult could amount to more than $5,000 depending once again on the severity of the pictures or messages that were sent and the age of recipient; and
- Sex Offender Registry: Adults, and in many cases juveniles, that are convicted of a sexting crime will be considered sex offenders. As such, they must then register themselves with a state sex offender registry.
Once again, the crime of sexting may be charged as either misdemeanor charges or a felony, dependent on the nature of the sexually explicit content, as well as the age of the sender and recipient.
What Are the Legal Defenses to a Sexting Charge?
As mentioned above, sexting is not always a crime. As such, the best legal defense to a criminal sexting charge is that the messages were made between two consenting adults. Thus, if both parties consented to the sexting, then they may not face any criminal charges.
However, consent does not matter if one of the parties to the sexting is a minor. In addition to consent, there may be additional legal defenses available based on local laws.
How Can Sexting Be Prevented?
Although it may seem obvious, the best way to prevent sexting is education. Specifically, education regarding the dangers and criminal penalties for sexting should be discussed between parents and their children.
Although parents will not typically be held liable for children who choose to send sext messages, parents may become liable for negligence or child neglect in some cases. Additionally, parents may become liable for not reporting instances of criminal sexting.
Do I Need a Lawyer for Sexting Charges?
As can be seen, the criminal penalties for criminal sexting are often very serious in nature, and can remain permanently on one’s record.
As such, if you have been charged with criminal sexting it is important to contact an experienced criminal defense attorney immediately. An experienced criminal defense attorney can ensure that your legal rights are protected, as well as help you build a solid legal defense.
Additionally, an attorney can also assert any legal defenses that may be applicable in your specific case. Finally, an attorney will also be able to represent you during any in person criminal proceedings, and at trial as necessary.