When Is Sexting Illegal?

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 What Is "Sexting"?

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 messages through text, social media, and e-mail.

While sexting refers to sending nude photographs, it can also include sending words 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.

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 anand adult and a minor, or a minor to a minor, are all unlawful acts.

When Is Sexting Illegal?

In some instances, sexting is illegal:

  • Distribution without Permission: If someone sends sexually explicit photographs or videos of another person without their consent, the offender may face criminal charges. Many states characterize this as “revenge porn.” Revenge need not be the purpose of spreading the images: the offender need only intend to distribute the sexually explicit material to harass or annoy the victim. RememberKeep in mind that even if the victim originally gave the offender consent to take the photographs, it becomes illegal when they are distributed without the victim’s consent.
  • Child Pornography: Sexting also becomes a legal problem when underage kids send nude pictures of themselves or someone underage. There is debate about whether sexting between two consensual minors would be considered possession of child pornography. Many states will decline to prosecute or give harsh sentences when two minors are involved, especially if the two minors both consented to the sexting.
    • If these images end up in possession of an older person above the age of majority (generally 18 years of age), that person could end up being charged with possession of child pornography.
    • If an adult sends images of a minor, they will be charged with the distribution of child pornography. It does not matter whether the child took the pictures willingly – children cannot consent to such actions.
  • Harassment, Stalking, and Bullying: Additionally, among kids, sexting has often been a source of other issues like cyberbullying, stalking, and harassment. Unfortunately been reported cases of suicide by minors linked to sexting images without the person’s consent.
    • Adults may be charged with child molestation and harassment for sending pictures of themselves to minors.
      Remember 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. This is only a strong defense when it involves two people both over the age of consent – two adults or older teenagers. That is because children simply cannot give consent legally. Consent is a stronger defense if there is written evidence supporting it. For example, if there is a text message from the victim provides permission to the other person to distribute the images, the consent defense can be raised.

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 are 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:

  • Jail time (prison time if child pornography is involved)
  • Fines
  • Probation
  • Community service
  • Counseling
  • Employment consequences (for workplace sexting)
  • Being placed on the sex offender registry

Since sexting is a newer thing, the states vary in their laws and penalties for sexting. Twenty-seven have made it illegal, and others are in the process of getting bills through their legislature.

Some states are still learning how they want to handle these crimes, especially when they involve minors.

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. In addition, sending explicit pictures of someone without their consent is considered a felony.

On the other hand, if the act involves the exchange of pictures between two consenting minors, some states may only charge the persons with a misdemeanor. Misdemeanor penalties generally include smaller criminal fines and up to a year in jail. For teenagers, counseling on the dangers of sexting is a common form of discipline.

Where Is Sexting Illegal?

The laws on sexting in some 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 specifically 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:

  • Arizona;
  • Arkansas;
  • Colorado;
  • Connecticut;
  • Florida;
  • Georgia;
  • Hawaii;
  • Illinois;
  • Indiana;
  • Kansas;
  • Louisiana;
  • Nebraska;
  • Nevada;
  • New Jersey;
  • New Mexico;
  • New York;
  • North Dakota;
  • Oklahoma;
  • Pennsylvania;
  • Rhode Island;
  • South Dakota;
  • Tennessee;
  • Texas;
  • Utah;
  • Vermont;
  • 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. Sexting 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.

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 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 will be familiar with the status of the law in your state and know how it’s being applied.

The criminal penalties for criminal sexting are often very serious 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 and help you build a solid legal defense.

Additionally, an attorney can also assert any legal defenses applicable to your specific case.

Finally, an attorney will also be able to represent you during any in-person criminal proceedings and at trial as necessary.

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