Sexting is the act of sending (including forwarding and distributing), viewing or receiving (keeping) images, messages, videos or other materials that are sexually suggestive or graphic in nature. Sexting may be done in a variety of ways, such as with the use of computers, cell phones, emails, or through social media.

With the prevalence of cell phones in particular, sexting has become extremely common and easy to do, so much so that people often sext without thinking about the potential legal and reputational consequences.

Sexting between two adults is generally not considered a crime. On the other hand, sexting involving a minor might be. However, like so many activities concerning developing technologies, the laws haven’t exactly caught up with sexting as well as it should.

If your state does not have a sexting law specifically, it may prosecute a sexting case under traditional laws, for example, those relating to pornography and harassment. Bottom line, sexting involving a minor is unlawful and can lead to serious legal consequences.

Why Do People Sext?

Using a digital service can make it easier to flirt with someone you are in a relationship with or with someone you like. This type of innocent flirting represents most scenarios in which sexting occurs.

However, sexting can also have sinister motivations, such as to blackmail a person with whom you are no longer in a relationship. Someone may also send you sexually explicit images or messages in order to harass, embarrass or coerce you into doing something you do not want to do.

Is Your Consent to Receive a Sext Relevant?

Sexting often involves—but does not require—a relationship between the sender and the recipient. However, sometimes we receive texts from unknown senders or even from people we know but  to whom we did not give our consent to receive the images sent. In neither of these scenarios can it be fair to prosecute the recipient.

Thus, receiving sexts implies the need for consent to receive them. However, In the absence of explicit consent beforehand, the recipient may show consent if they choose to retain the images or video on their device. Under these facts, receiving the sexted material may be legally actionable. Note that the issue of consent is less relevant when minors are involved.

Is Sexting with a Minor Considered a Crime?

Young people in particular are using their phones more often to send, receive or forward sexually explicit images or videos. Sometimes the pictures are of themselves and sometimes they are of other people.

Whenever a minor is involved in this interaction, it is likely to be considered unlawful. There are a few scenarios in which the minor may be involved:

  • Both the sender and recipient are minors (which gets complicated since both parties can be seen as victims);
  • The sender is a minor and the recipient is an adult;
  • The recipient and sender are adults and the image shared is of a minor; and/or
  • The recipient and sender are minors and the image shared is of a third minor.

Under any of these scenarios, one or more of the participants may be charged with a crime. Note that if you are a minor who sends an image of yourself that you too may be charged with a crime.

However, only a handful of states have statutes making sexting with a minor a crime. Those statutes define what a “minor” is. In other states (and under federal law), one who sexts with a minor may be charged under traditional statutes, including for child pornography.

Let’s look at an example. Katie is a fourteen-year-old girl who got drunk at a party and, Angie, a fellow fourteen-year-old female classmate, took pictures of Katie when she was partly nude. Angie then sends a copy of the pictures to Katie and tells Katie that Angie will send them to everyone in the school if she doesn’t drop out of the cheerleading team.

Whether or not Angie will be charged with sexting will depend on whether the state has a sexting law specifically. But, even if the state does not, Angie may still be charged with child pornography, harassment and extortion, for starters.

Why Do Some States Have “Sexting a Minor” Laws?

Being charged with child pornography can lead to severe legal penalties. Often times, however, the sexting between two minors are innocent in nature. States with sexting laws recognize this distinction between minors and adults and have placed sexting laws on the books to differentiate from the more serious charge of child pornography.

Absent some unusually exacerbating facts (i.e. posting the material online or distributing to other people), sexting between minors may result in no charge or a charge of the least serious offense.

Sexting laws are aimed at minors who may engage in this activity. Adults who engage in sexting would face a more serious charge of child pornography and may even be required to register as a sex offender.

Should I Consult With an Attorney If I am Facing Charges for Sexting a Minor?

If you have been charged with sending materials involving a minor or for receiving those materials, it is best to consult with a local criminal defense attorney. Your age, the age of the person in those materials and other factors can determine what your lawyer’s advice to you will be and can help your lawyer mount your best defense to such charges.