"Sexting" is the sending of nude or sexually suggestive images (usually photos) electronically, whether through text messaging, social media, chat boards, or email. Sexting has become especially common among teenagers—many of whom are minors—and can easily be used to cyberbully or harass.
Some states have enacted laws that specifically address sexting by minors, with consequences that are typically less harsh than when the same behavior is committed by an adult. Other states punish sexting under preexisting laws against child pornography or child enticement, which can result in severe punishments for both adults and minors.
California is one of the states that does not (as of February 2020) have laws tailored specifically to teen sexting. Sexting with minors can be prosecuted under California's general child pornography and exploitation laws.
The absence of teen sexting laws creates serious consequences for teenagers, especially those age 18 or 19 who engage in sexting with a minor (a person 17 or younger). An 18- or 19-year-old charged with a crime goes to adult court and faces adult criminal penalties—including prison and sex offender registration. Defendants under the age of 18 are typically handled through the juvenile courts, which have more flexibility and sentencing options.
California's child pornography laws prohibit possessing or sending images of minors that are obscene or that show a minor engaged in an act of "sexual conduct." The definition of sexual conduct includes sexual acts, as well as the showing of the genitals or pubic or rectal area for the purpose of the viewer's sexual stimulation.
The sending and receiving of nude or sexually suggestive images of a minor through sexting generally fall under these provisions. These laws apply to adults and minors who sext images of minors. A minor can commit an offense by sexting a selfie or an image of another minor.
(Cal. Penal Code § 311.4 (d) (2019).)
A person who possesses or otherwise controls material (including images and photos) that depicts a person younger than 18 engaging in or simulating sexual conduct commits a felony. In order to be guilty of the offense, the person must know that the person depicted in the image is a minor.
Under this section, a 19-year-old person sexting with a 17-year-old minor may be charged with a crime if the 19-year-old receives a nude self-portrait of the 17-year-old. The 17-year-old could be prosecuted as well.
A person convicted of this offense faces up to a year in state prison or county jail, a $2,500 fine, or both. If the defendant has a prior conviction for this or any other offense that requires registration under the state's Sex Offender Registration Act, the sentence increases to two, four, or six years in prison.
(Cal. Penal Code § 311.11 (2019).)
It's also a crime to knowingly send, cause to be sent, or possess material showing a minor engaged in or simulating sexual conduct, when the intent is to distribute, exhibit, or exchange the material with another. A minor sexting a selfie to another person would fall under this section. The receiver of the image could fall under this section as well if the receiver intends to show or share the image with another person.
A person convicted of the offense may be sentenced by up to a year in the county jail or state prison, a fine of $2,000, or both. If the person intended to send the material to a minor, the penalty increases to a felony.
(Cal. Penal Code § 311.2 (c), (d) (2019).)
A person who knowingly develops, duplicates, prints, or exchanges any material showing a person under 18 engaged in an act of sexual conduct commits the offense of sexual exploitation of a child.
In general, sexting involves the exchange of an image from the sender to the receiver, and if that image is of a minor, it would fall under this section. One exception exists: No crime is committed if the person did not solicit the material and the material is received without knowledge or consent via a network over which the person has no control.
A conviction for sexual exploitation of a child carries a possible sentence of one year in county jail, a $2,000 fine, or both.
(Cal. Penal Code § 311.3 (2019).)
California also makes it a crime for a person to send or distribute, or offer to send or distribute, by electronic communication any "harmful matter" to a minor with the intent to both sexually gratify or appeal to the person or minor and seduce or arouse the minor. Harmful matter is anything that depicts or describes sexual conduct in an offensive way, and lacks serious literary, artistic, political, or scientific value for minors.
In order to be guilty of the offense, the person must know that the recipient of the material is a minor, or the person must fail to use reasonable care in determining the true age of a minor.
An adult who sexts a sexually explicit self-portrait to a minor may be charged with this crime even though sending the same image would not constitute a crime if the recipient is 18 or older.
If the harmful matter depicts a minor engaged in sexual conduct, a person convicted of sending harmful matter with the intent to seduce a minor is guilty of a misdemeanor punishable by up to one year in county jail, or a felony punishable by two, three, or five years in prison. For harmful matter not depicting a minor, the misdemeanor punishment remains the same, but the felony punishment is 16 months, two years, or three years in prison.
(Cal. Penal Code §§ 288.2, 313, 1170 (2019).)
An adult convicted of committing any of the above offenses is required to register in California's sex offender registry, except that a conviction for sending harmful matter with the intent to seduce a minor does not require registration if the conviction is a public offense and not a felony.
A minor adjudicated in juvenile court is not required to register as a sex offender.
(Cal. Penal Code §§ 290, 290.008 (2019).)
Sexting cases involving offenders age 12 to 17 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.
Minors who are 16 or older and charged with a felony can be transferred to California's adult court and face adult penalties.
(Cal. Welf. & Inst. Code §§ 602, 707 (2019).)
If you are accused of violating one of California's child pornography laws for having engaged in sexting with a minor, you should speak with an attorney. A conviction for committing a child pornography or exploitation crime carries the possibility of prison, a fine, and, in some cases, mandatory registration on California's sex offender registry. Your attorney will evaluate your case and discuss possible defenses to the charges.