Sending nude, sexual, or otherwise explicit images via smartphone, through Internet messaging, or by similar means is commonly known as sexting.
States have taken various approaches to address teen sexting. Some have enacted laws prohibiting sexting by or between minors. These laws tend to have penalties that aren't as severe as when an adult sexts with a minor. Other states punish sexting under preexisting laws against sexual exploitation of a child or child pornography, which often have harsh penalties.
Colorado is one of the states that has adopted legislation specifically addressing sexting by teenagers younger than 18. The law provides prosecutors a charging option that allows minors to avoid a felony record and sex offender registration. Felony charges remain an option if the conduct involved goes beyond the juvenile sexting statute.
As of January 1, 2018, sexting by juveniles (those younger than 18) can be handled by a civil citation or as a petty offense or misdemeanor. Before the new law was enacted, prosecutors had only felony tools at their disposal.
Definitions. The juvenile sexting law applies only to acts committed by juveniles (those younger than 18) involving sexually explicit images of, or sent to, a person who is (a) 14 or older or (b) less than four years younger than the juvenile offender. A "sexually explicit image" is defined as any electronic or digital photo, video, or video depiction of a person's external genitalia, pubic area, anus, or buttocks, or a female's breasts.
Civil and criminal penalties. Juveniles who engage in consensual sexting receive a civil citation and must attend educational programming and pay a small fine. Criminal penalties apply when sexting involves a nonconsensual act, harassment, repeat offense, or possession of multiple images depicting multiple individuals.
Diversion. The law encourages prosecutors to develop diversion or alternative programs for juveniles charged with a first offense under the law. Diversion allows the juvenile to avoid adjudication as a juvenile delinquent.
Expungement. Expungement of all juvenile court records and any records of the case, diversion, or other programming must occur within 42 days of the juvenile completing the sentence or program.
The three offense levels for juvenile sexting are described below.
Consensual sexting (or exchange) of private images by a juvenile no longer constitutes a crime but continues to be prohibited under Colorado law. A juvenile who sends a sexually explicit selfie to another person or receives a sexually explicit image of another person commits a civil infraction. The court can require the juvenile to pay a $50 fine and participate in programming that addresses the risks of sexting.
A juvenile who knowingly possesses, through digital or electronic means, a sexually explicit image of a person without permission commits a petty offense. A juvenile can avoid a violation of this section by taking action within 72 hours to: destroy or delete the image or report the image to law enforcement or a school resource officer.
The law makes it a class 2 misdemeanor for a juvenile to:
The penalty increases to a class 1 misdemeanor if the sexting involves harassment, a repeat offense, or possession of multiple images depicting multiple individuals.
(Colo. Rev. Stat. § 18-7-109 (2019).)
If an act of sexting involves images of a minor but doesn't fall under the juvenile sexting law, a prosecutor may be able to file charges under Colorado's existing felony sexual exploitation laws.
Sexting that involves sexually exploitative images of a child (younger than 18) can also constitute a felony. Sexually exploitative images are those that show "explicit sexual conduct," which includes sexual intercourse, erotic fondling, erotic nudity, and sexual excitement.
A person commits sexual exploitation of a child when that person knowingly possesses or controls any sexually exploitative images of a child, or prepares a sexually exploitative image of a minor for distribution through electronic means. Depending on the circumstances of the crime, sexual exploitation of a child is a Class 3, 4, or 6 felony offense.
The law specifically states that a prosecutor cannot charge a juvenile under this section for conduct that can be charged under the juvenile sexting law.
(Colo. Rev. Stat. § 18-6-403 (2019).)
Internet sexual exploitation of a child occurs when an actor invites or convinces a child to do any of the following via the Internet or by texting or instant messaging:
The definition of a child includes a person the actor knows or believes to be younger than 15 and at least 4 years younger than the actor.
Internet sexual exploitation of a child is a Class 4 felony.
(Colo. Rev. Stat. § 18-3-405.4 (2019).)
Juveniles age 10 to 17 fall under the jurisdiction of Colorado's juvenile court. For a felony violation, a juvenile age 14 or older may be tried in juvenile court or transferred to adult court to face adult penalties.
Because the juvenile sexting law carries a maximum penalty of a misdemeanor, these cases fall under the jurisdiction of the juvenile court. Adult court only comes into play if a juvenile age 14 to 17 faces felony charges for sexual exploitation crimes. But transfer to adult court is discretionary, so even these felonies may be prosecuted in juvenile court.
Juvenile penalties. If the juvenile goes through the juvenile justice process, courts and prosecutors have much broader discretion in determining appropriate sentences. For example, the court may order the juvenile to pay a fine, be supervised on probation, or complete treatment, educational programming, or community service hours.
Adult penalties. An adult or juvenile tried as an adult who is convicted of a sexual exploitation charge faces harsh penalties. Depending on the circumstances, the court can impose up to 12 years in prison and fines of up to $750,000.
(Colo. Rev. Stat. §§ 19-2-104, 19-2-518 (2019).)
Adults convicted of sexual exploitation of a child or Internet sexual exploitation of a child must register as a sex offender. Juveniles adjudicated of these felony offenses must also register but may petition the court to discontinue the registration requirement. (A juvenile does not have to register for an offense under the juvenile sexting law.)
(Colo. Rev. Stat. §§ 16-22-103; 16-22-113 (2019).)
Sexting in Colorado can have serious ramifications for a teenager or an adult. If you have been charged with a crime, approached by investigators, or believe you might have done something illegal, you should speak to a Colorado criminal defense attorney as soon as possible.