Sexting images of a minor—someone younger than 18—can result in serious charges and penalties. These offenses can be prosecuted under California's child pornography and related laws. Read on to learn more about sexting laws in California.
Sexting refers to the taking, sending, or receiving of nude or sexual photos or videos by electronic means, whether through a text message, social media, or email. Especially common among teenagers, sexting can easily be used to bully or harass others.
Sexting between consenting adults is legal, as long as the images aren't of minors. But acts of sexting with a minor or sexting images of minors are illegal, and they fall under California's child pornography and sexual exploitation laws, which can result in felony penalties. Such laws were originally enacted to protect kids from sexual predators (not necessarily from other kids). While some states have addressed the issue of teen sexting by providing reduced penalties for sexting by or between minors, California is not one of these states.
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 younger than 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.
A person who possesses images that depict 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 selfie 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.
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 to 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.
A person who knowingly develops, duplicates, prints, or exchanges any material showing a person younger than 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 §§ 311.2 (c), (d); 311.3; 311.4 (d); 311.11 (2022).)
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 selfie to a minor may be charged with this crime even though sending the same image would not constitute a crime if the recipient was 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, 2 years, or 3 years in prison.
(Cal. Penal Code §§ 288.2, 313, 1170 (2022).)
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 (2022).)
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 a criminal defense 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.