The term sexting refers to the exchange of nude self-portraits (typically taken with a smart phone camera) via cell phone. Some states have enacted laws that specifically address sexting among teenagers, and typically provide for less harsh consequences than when the same behavior is committed by an adult. California, however, does not currently have laws tailored specifically to teen sexting. According to the National Conference of State Legislatures, California legislative bills regulating teen sexting have failed to win passage.
The absence of laws designed for teenagers only has a serious impact on a teenager 18 or 19 years of age who engages in sexting with a person 17 or under. (Youth defendants under the age of 18 are handled through the juvenile courts, where the same offenses may be charged as in adult court, but the outcomes are typically less onerous.) This young person may be prosecuted under California’s general child pornography and exploitation laws, which provide for very harsh sentences. One or more of the following California criminal laws may apply to such a scenario.
A person who possesses or otherwise controls material that depicts a person under 18 years of age engaging in or simulating sexual conduct commits a felony punishable by up to a year in prison, a $2,500 fine, or both. In order to be guilty of the offense, the person must know that the material shows a person under 18 engaging in or simulating sexual conduct. The prosecutor does not have to prove that the material meets the legal definition of obscene material.
California’s definition of sexual conduct includes showing of the genitals, public, or rectal area. Therefore, a 19-year old person sexting with a 17-year old may be charged with the crime of possessing matter depicting a minor engaged in sexual conduct if the 19-year old receives a nude self-portrait of the 17-year old.
If the defendant has a prior conviction for the offense or any other offense that requires registration under the state’s Sex Offender Registration Act (or an attempt to commit any of these offenses), a new conviction for possession or control of matter depicting a minor engaging in or simulating sexual conduct will result in a prison sentence of two, four, or six years.
(Cal. Penal Code § § 311.4, 311.11)
A person who develops, duplicates, prints, or exchanges any material showing a person under 18 years of age engaging in or simulating sexual conduct commits the offense of sexual exploitation of a child. A conviction for sexual exploitation of a child carries a sentence of one year in prison, a $2,000 fine, or both. Therefore, a person sexting with an individual under 18 might be charged with this offense if the person subsequently swaps a sexually explicit image of the minor with another person.
A person is not guilty of the crime 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.
(Cal. Penal Code § 311.3)
California also makes it a crime for a person to send, distribute, exhibit or offer to send, distribute, or exhibit 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. 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. Harmful matter is matter that depicts or describes sexual conduct in an offensive way, and the matter lacks serious literary, artistic, political, or scientific value for minors.
For example, 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 over.
A person convicted of sending harmful matter with the intent to seduce a minor is guilty of a misdemeanor, unless the defendant has one or more prior convictions for sending harmful matter with the intent to seduce a minor, in which case the new conviction is a felony. If classified as a felony, the defendant may be sentenced up to three years in prison.
(Cal. Penal Code § § 288.2, 313, 1170)
It is a crime to knowingly send or bring into the state (or cause to be sent or brought into the state) material showing a minor engaged in or simulating sexual conduct, when the intent is to distribute, exhibit, or exchange the material. The same statute also prohibits a person from possessing, preparing, publishing, producing, developing, duplicating, or printing any obscene matter showing a person under 18 engaging in sexual conduct.
A person convicted of the offense may be sentenced up to a year confinement. If the person is sentenced to the county jail, the court may impose a fine up to $1,000; if the judge sentences the person to serve time in state prison, the judge may also impose a fine up to $10,000.
(Cal. Penal Code § 311.1)
Any person convicted of committing any of the above offenses is required to register in California’s sexual 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.
(Cal. Penal Code § 290)
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.)
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. Retaining an experienced attorney to advocate on your behalf is the most important step you can take to ensure a successful outcome to your case.