The practice of exchanging nude or sexually explicit photos via smartphone, known as sexting, has become more common, especially with teenagers.
Updated May 05, 2020
Sexting involves the exchange or sending of nude or sexually explicit photos electronically, whether through text messaging, social media, chat boards, or email. Sexting is especially popular among teenagers—many of whom are minors—and can easily be used to cyberbully or harass.
States' responses to sexting by minors vary widely. Some states have passed laws that address sexting among teenagers, usually providing penalties that are less harsh than when an adult sexts images of a minor. Other states have yet to pass such laws, and instead, sexting can fall under harsh child pornography or child enticement laws.
Arkansas is one of the states that has enacted a law addressing teen sexting. The law offers prosecutors a charging option that doesn't result in a felony record or sex offender registration for minors who sext.
Sexting By Minors: Possession of Sexually Explicit Digital Material
Under Arkansas law, a minor commits a misdemeanor offense by intentionally creating, distributing, posting, exchanging, disseminating, or possessing any "sexually explicit digital material," using a computer, wireless communication device, or digital media. Arkansas' teen sexting law applies only to acts committed by minors involving images of minors.
Definitions. Under the law, a minor is a person younger than 18. "Sexually explicit digital material" means any photograph, digital image, or visual depiction of a minor in a state of nudity or involved in a sexual act.
Penalties. A violation of the law results in a Class A misdemeanor. For a first offense, the court may order the minor to complete eight hours of community service. Otherwise, a Class A misdemeanor can be punished by a fine up to $2,500 and a maximum period of one year of confinement. A violation is handled in juvenile court.
Defenses. The statute allows two affirmative defenses. Under the first defense, a minor won't be convicted if the minor did not seek the image, did not subsequently distribute the image, and deleted or destroyed the image upon receipt. A minor also has a defense if the image was a selfie that the minor did not distribute.
(Ark. Code §§ 5-25-101, 5-27-609, 9-27-318 (2019).)
Sexting Images of Minors: Child Pornography and Exploitations Laws
Sexting images of minors can also fall under Arkansas' child pornography and exploitation laws. With one exception, both minors and adults can be charged with these offenses. These laws prohibit creating, exchanging, or distributing images depicting a child engaged in "sexually explicit conduct." Sexually explicit conduct includes actual or simulated sexual intercourse, masturbation, or the lewd exhibition of any person's genitals or pubic area or of a female breast.
Child Exploitation Laws
Arkansas law prohibits an adult from persuading or enticing a child (younger than 18) to engage in sexually explicit conduct for the purpose of creating an image. A first offense is a Class B felony. The penalty increases to a Class A felony for subsequent offenses.
Any person (minor or adult) who exchanges, possesses, views, or distributes a sexually explicit image knowing it depicts a child (younger than 18) can be charged with a Class C felony. A subsequent offense is a Class B felony.
(Ark. Code. §§ 5-27-302, -303, -304 (2019).)
Child Pornography Laws
Arkansas law also prohibits distributing, possessing, or viewing by any means an image, video, or computer file that shows a child (younger than 17) engaged in sexually explicit conduct.
A first conviction is a Class C felony. Any subsequent convictions for the offense are punished as Class B felonies. Under the statute, a defendant may raise the defense that the defendant had a good faith reasonable belief that the person shown in the image was 17 years old or older.
(Ark. Code §§ 5-27-601; -602 (2019).)
Penalties
A Class A felony carries a sentence between six and 30 years in prison and up to $15,000 in fines. For a Class B felony, the minimum sentence is five years and the maximum is 20 years in prison with a fine up to $15,000. A Class C felony is punishable by not less than three years and up to ten years in prison and a $10,000 fine.
(Ark. Code §§ 5-4-201, -401; 5-27-302, -601, -605 (2019)).
Juvenile or Adult Court
Sexting cases involving offenders younger than 18 may be handled in juvenile court rather than adult court. In juvenile court, judges can often exercise greater discretion in sentencing, including ordering treatment, curfews, monitoring, and community service.
For minors age 16 or older and charged with a felony, the prosecutor can file charges in juvenile or adult court. If charged in adult court, the minor faces adult penalties including prison time and sex offender registration.
Any crime committed by an adult (18 or older) will be tried in criminal court.
Sex Offender Registration
An adult or minor tried as an adult must register as a sex offender if convicted of one of the child pornography or exploitation crimes listed above.
A minor adjudicated delinquent (similar to a conviction in criminal court) for misdemeanor teen sexting does not have to register as a sex offender.
(Ark. Code §§ 9-27-356; 12-12-905 (2019).)
Contact an Attorney
If you are charged with violating Arkansas law for sexting, you should speak with an attorney immediately. Arkansas' child pornography and exploitation laws contain serious penalties, including the possibility of a long prison sentence and registration as a sex offender. Misdemeanor teen sexting charges are no joke either. Juvenile offenses can follow a person for a long time. An experienced attorney can assess the charges against you and provide important guidance while ensuring that your rights are protected.
