Since cell phones first saw widespread adoption in the 1990s, they've become not just ever present, but have developed vastly expanded capabilities, such as the ability to take and instantly share photos. This ability has lead to the phenomena of “sexting,” where people send suggestive or nude pictures to others using their cell phones. Some states have adopted laws that prescribe penalties aimed specifically at teenagers or adolescents who send such photos. These laws make the penalties for teen sexting less severe than if an adult would send similar photos to an under-age person.
To get state specific details regarding sexting, jump ahead to teen sexting laws by state.
Sexting laws are a relatively new phenomena in the law. Though specific teen sexting laws are not present in a majority of states, the trend appears to be towards more widespread adoption of sexting laws. In the meantime, in those states without sexting laws, sexting may still be punished under pre-existing laws that target child pornography.
The states that have adopted sexting laws have specifically targeted images sent between or among teenagers. For example, Connecticut's sexting law targets teens (anyone between 13 and 17) who either transmit or possess nude or obscene photos of either themselves or another teenager. The Connecticut law also makes distinctions between the age of the sender and the recipient, penalizing senders between the ages of 13 and 15 who send pictures of themselves, and recipients between the ages of 13 and 17 who receive any images.
However, state laws differ significantly. Louisiana, for example, prohibits anyone under the age of 17 from sending or keeping explicit photographs, while Texas allows an exception for sexting if a minor sexts with another minor who is no more than 2 years older or younger and the two are dating.
Teen sexting laws prohibit both sending and receiving of explicit images. However, it isn't really possible to prevent someone else from sending you a photo. Because of that, sexting laws typically prohibit “receiving and keeping” any explicit images. If, for example, a teen receives an explicit or pornographic image from someone else, the teen hasn't violated a sexting law unless the teen chooses to keep the image. It may also be enough to avoid a sexting conviction if the person receiving the message tried to delete it but was unable to.
In some states, especially those that do not have specific sexting laws, anyone who creates, possesses, or distributes nude or explicit photos of a juvenile can be charged with child pornography or related crimes, such as the sexual exploitation of a minor. Child pornography charges can arise whenever a person sends or receives explicit images of a person under the age of 18. But it isn't just adults who send or receive such images who can be charged with these crimes, and even teens who send pictures of themselves to adults can face child pornography charges
Sexting and Federal Law
Depending on the circumstances, sexting may also be a crime under federal law.
The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 makes it illegal to produce, distribute, receive, or possess with intent to distribute any obscene visual depiction of a minor engaged in sexually explicit conduct. Knowing possession of such material—without intent to distribute—is also a crime under the PROTECT Act. (18 U.S.C. § 1466A(a)(1).)
Federal law also criminalizes causing a minor to take part in sexually explicit conduct in order to visually depict that conduct. Parents who allow this behavior can also be prosecuted. (18 U.S.C. § 2251.)
It’s also a federal crime to use a computer to ship, transport, receive, distribute, or reproduce for distribution a depiction of a minor actually engaging in sexually explicit conduct, or any material that otherwise constitutes child pornography. It’s another federal crime to promote or solicit sexually explicit material involving a minor. (18 U.S.C. § § 2252, 2252A.)
But federal prosecution of juveniles for sexting may be unlikely. The Federal Juvenile Delinquency Act (FJDA) generally provides that, where possible, juveniles should be prosecuted in state—not federal—courts. (18 U.S.C. § 5032.)
It's important to note that even though sexting laws apply to teenagers, this doesn't mean that people over the age of 16 or 18 who send sex messages are free from committing a crime. For example, a 19-year old who sends or receives and keeps an explicit image of an person under the age of 18 may be charged with child pornography or similar crimes. Sexting laws are designed to target teens who send explicit images to other teens, making the crime less significant than a child pornography charge, which would otherwise apply if the people involved were adults.
Because teen sexting can involve juvenile courts or adult courts, and cover various criminal laws, there is a wide range of potential penalties that may apply. In states that have specific laws that target sexting, the crime is typically either a misdemeanor offense or petty offense, a type of offense considered less serious than a misdemeanor. However, in other states a sexting offense may be considered child pornography, an offense that is typically charged as a felony and one that has much harsher penalties.
When a juvenile—a person under the age of 18—commits a criminal offense, that offense is dealt with through the juvenile justice system, not the adult criminal justice system. Juvenile courts have a wider discretion in the kinds of penalties they impose, even when a juvenile is charged with a serious offense.
If a teen is 18 or older, that teen can be charged as an adult and face more significant penalties, especially if convicted of child pornography or a similar charge.
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Any charges that stem from teen sexting can result in some very serious consequences for the teen, the people who shared photos with the teen, and the teen's parents or guardians. If you've been questioned by the police or charged with a sexting crime, you need to speak to an experienced local criminal defense lawyer immediately. Sexting can involve different criminal charges, and because these charges can differ so significantly between states, only a local attorney can provide you with legal advice about your case.
Keep in mind that if you end up with a conviction that requires registration as a sex offender, the consequences will be lifelong and dire, affecting your ability to work and severely limiting where you can live. For this reason alone, you absolutely must consult with an experienced criminal defense attorney.