Sexting between adults is usually legal but there are some circumstances where sending nudes or exchanging other sexually explicit content is illegal. Read on to find out about the differences between legal and illegal sexting, and the consequences of committing a sexting crime.
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. But between consenting adults, the private sharing of nude or suggestive photos is generally not illegal.
But that does not mean that adults shouldn't be cautious. There are circumstances under which sexting by adults could result in criminal charges.
A classic example is texting by a teen who is an adult. 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 might 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.
Below are some other situations where adults of any age can find themselves in serious legal trouble for sexting
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 don't 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's illegal to share with children anything obscene or sexual in nature. For example, a school teacher who sends a photo of their genitals to a student could be convicted of disseminating obscenity. (See Pruitt v. State, 272 So.3d 732 (Ala. Ct. App. 2018).
Finally, an adult who shares nude or sexual photos of another adult without their permission, or who sends unwanted sexts to someone could be charged with harassment. Or, they could be sued in civil court for causing emotional distress or other damage. One common scenario is revenge porn, for example, when an ex-boyfriend distributes private nude 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 an image of a minor is involved. The punishment varies depending on the type of crime and the particular state or federal law that applies.
Child pornography. The punishment for possessing or distributing child pornography can be very severe. Some laws 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 are often required to make the information public. Usually, the person's name, date of birth, criminal offense, and other details are made available online. 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. The laws on child enticement can also be very harsh, and the crime is often punished by long prison terms. Usually, child enticement convictions also result in sex offender registration.
Obscenity. The laws that punish obscenity vary greatly. In some states, disseminating obscenity to a minor is a misdemeanor, which can be punished in most states by up to one year in jail. In other states, the crime could be a felony, which means it can be punished by a year or more in state prison. Each state's requirements on sex offender registration also differ for obscenity convictions.
Harassment. The penalties for harassment convictions also vary. Often, the crime is punished as 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.