"Sexting", which is a phrase that combines the words sex and texting, refers to a situation where someone sends sexually explicit messages to another person through electronic means. Examples include sending the messages through text, social media and e-mail.

While sexting usually refers to sending nude photographs, it can also include sending words alone that are meant to be sexually explicit. With the rise in electronic communication, sexting has become more common and can have serious consequences in certain situations.

When is Sexting Illegal?

There are some instances where sexting can be considered illegal.

  • Distribution without Permission: If someone sends out nude photographs of another person without their consent, they may face criminal charges. Many states will characterize this as revenge porn that can result in legal consequences.
    • Keep in mind that even if the victim originally gave the person consent to take the photographs, it becomes illegal when they are distributed without that person’s consent.
  • Child Pornography: Sexting also becomes a legal problem when underage kids send nude pictures of themselves or someone else who is underage.
    • If these images end up in the possession of an older person who is above the age of majority (which is generally 18 years of age), that person could end up with being charged with possession of child pornography.
    • If an adult sends images of a minor, they may be charged with distribution of child pornography.
    • There is debate as to whether sexting between two consensual minors would be considered possession of child pornography. Many states will decline to prosecute or give harsher sentences when two minors are involved, especially if the two minors both consented to the sexting.
  • Harassment, Stalking and Bullying: Additionally, among kids sexting has often been a source of other issues like cyberbullying, stalking and harassment. There have unfortunately been reported cases of suicide by minors linked to sexting images without the person’s consent.
    • Adults may also be charged with child molestation and harassment for sending pictures of themselves to minors.
    • Keep in mind that charges for harassment, stalking or bullying can still result if the conduct occurs between two adults.
  • Workplace Sexting: Sexting can also trigger issues relating to sexual harassment in the employment setting. If someone receives unwanted sexual texts and reports it to their supervisor, the harasser could face serious consequences. This can include being written up, termination or even criminal charges.

Are There Any Defenses to Charges Involving Sexting?

The main defense to any charge involving sexting is consent, especially when it involves a case with two adults. This defense would be stronger if there is written evidence supporting it. For example, if there is a text messaging from the victim that provides permission to the other person to distribute the images, the consent defense can be raised. However, if one or both of the individuals is a minor it may be harder to use the consent defense.

Another defense could be mistaken identity, which may be harder to prove. If the person claims that they are not the one that sent the messages they can try to argue that as a defense. Common situations where this defense may be used is with a stolen cell phone or when a third party uses the accused's cell phone.

Are There Any Penalties for Illegal Sexting Charges?

Depending on the nature of the sexting and the age of the persons involved, some possible penalties for sexting include:

Since sexting is a newer thing, many states vary on their laws and penalties for sexting. Additionally, some states are still learning how they want to handle these crimes, especially when it involved minors. For example:

  • In most states, the act of sending illicit pictures involving a minor will result in felony charges. These are generally punishable by severe criminal fines and at least one year in a state prison.
  • Some states may only charge the person with a misdemeanor if the act only involves an exchange of pictures between two consenting minors. Penalties for misdemeanors generally include smaller criminal fines and up to a year in jail.
  • In many states, sexting remains a felony if there is no consent of the parties involved.

Do I Need to Consult an Attorney About a Sexting Charge?

Sexting laws are very new, differ between the states, and are constantly under revision as more cases emerge and as the different technologies continue to evolve. Because of this, hiring a local criminal attorney can be very beneficial if you need advice on sexting or are charged with a crime because of your sexting activities.

An attorney can educate you about your state’s current laws and stance on the issue. If you are charged with a crime for sexting, an attorney can also determine if you have any defense available.