Sexting is the sharing of nude or sexually explicit messages or photos, usually by smartphone or some other electronic device or means. Certain states have laws specific to sexting between minors. Between consenting adults, the private sharing of nude or suggestive photos is generally not illegal. However, that does not mean that adults shouldn't be cautious. There are circumstances under which sexting by adults could result in criminal charges.
Teens who are adults. Most states consider 18- and 19-year olds to be adults. If a young adult is involved in a relationship with someone a few years younger, the law may consider certain acts illegal because one party is a minor. In most states, sexting images of or to a minor constitutes a felony or misdemeanor.
First, an adult who receives or shares a nude or sexual image of a child under the age of 18 can be charged with possessing or sending child pornography. Some states have enacted defenses against child pornography charges for teens (sometimes including kids up to 19 years old) who engage in sexting, but such defenses do not apply to older adults. For example, one young man was charged with possessing child pornography because he had nude photos on his phone of his 16-year-old live-in girlfriend, who was also the mother of his child.
Similarly, in many states it's a crime to ask a child under the age of 18 to share a nude photo of him or herself (this is sometimes called child enticement)—even if the child is really a law enforcement officer posing as a child as part of a sting operation. Time and again, people have been arrested and convicted for sex crimes after they strike up a conversation online with an officer posing as a 15-year-old girl on social media or in a chat room and ask the “girl” to share nude photos of herself.
Second, an adult who sends a nude or sexual photo of him or herself to a child could also be convicted of a crime. In many states, it is illegal to share with children anything obscene or sexual in nature. For example, a school teacher who sends a photo of his genitals to a student could be convicted of disseminating obscenity.
Finally, an adult who shares nude or sexual photos of another adult without his or her permission or who sends unwanted sexts to another person could be charged with harassment or sued in civil court for causing emotional distress or other damage. One common scenario is revenge porn—for example, when an ex-boyfriend who distributes private photos in an effort to get back at his ex-girlfriend.
Penalties for crimes relating to sexting can be harsh, especially if a minor or image of a minor is involved.
Child pornography laws can be very harsh; many impose years in prison for each image. Furthermore, in almost all states, adults convicted of child pornography offenses are required to register as sex offenders. Sex offenders must provide their personal information to police officers, who may make the information public. Failing to register when required to do so is also a crime. Finally, registered sex offenders may be banned from certain jobs (such as teaching) or even from living near a park or playground.
Child enticement laws can also be very harsh, and the crime is often punishable by long prison terms. Usually, child enticement convictions also result in sex offender registration.
Obscenity laws vary greatly. In some states, disseminating obscenity to a minor is a misdemeanor (punishable in most states by up to one year in jail). In other states, the crime could be a felony (punishable by one year or more in state prison). States' requirements on sex offender registration also differ for obscenity convictions.
Harassment penalties also vary. Often, the penalty is a misdemeanor but can be enhanced to a felony for repeat offenses or threatening behavior. As more states enact "revenge porn" laws, harassing behavior can result in not only harsh criminal penalties but also civil sanctions.
If you are charged with a crime as a result of sexting, you should talk to a local attorney. Any criminal conviction can have very serious consequences, but the stakes are even higher when the crime is a sex offense involving a child. An experienced criminal defense attorney can provide you with appropriate legal advice and inform you of the potential consequences, including whether a conviction could result in sex offender registration. An attorney can protect your rights and help you successfully navigate the criminal justice system.