Cell phones, tablets, laptops, cheap cameras, and the Internet have made sharing photographs incredibly easy. When people share nude or explicit photos by using this type of technology, it’s often referred to as “sexting.”
When consenting adults choose to sext with one another it’s typically not a crime. However, if teenagers engage in sexting they can commit serious crimes because they are sharing nude or explicit photographs of children.
Because sexting is a relatively new phenomenon, states haven't developed a uniform way to approach it. Some states approach teen sexting as a matter of child pornography and charge teens who engage in this behavior with pornography crimes.
Other states have adopted laws that specifically address teen sexting. In these states, such as Illinois, teens face less stringent penalties than they would if prosecuted under child pornography laws.
If you’d like to know more about sexting generally, read Teen Sexting.
In Illinois, minors (people younger than 18) are prohibited from distributing or disseminating indecent visual images of other minors via any electronic communication device. Any minor who commits this type of violation can be subject to juvenile prosecution. (705 Ill. Comp. Stat. Ann. § 405/3-40.)
Anyone in Illinois who knowingly distributes nude or sexually explicit images to a minor commits the crime of distributing harmful material to a minor. Distributing harmful material is a Class A misdemeanor for a first offense, and a Class 4 felony when it is a second or subsequent offense. (720 Ill. Comp. Stat. Ann. § 5/11-21.)
A person in Illinois commits child pornography when he or she films, records, or depicts a minor engaging in a sexual or simulated sexual act. Depending on the circumstances, child pornography is a Class 1, 2, 3, or X felony.(720 Ill. Comp. Stat. Ann. § 5/11-20.1.)
Anyone in Illinois who is at least 17 years old and who posts the personal or contact information of a person under the age of 17 on an adult obscenity or child pornography website commits this crime. This crime also applies when someone posts a non-sexual or non-explicit image of a minor on such a site, or possesses an obscene child pornographic image in which the minor is clothed but posed in a suggestive manner. Depending on the circumstances, posting identifying or graphic information on such a site is either a Class 3 or Class 4 felony. (720 Ill. Comp. Stat. Ann. § 5/11-23.)
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.)
The types of penalties a court can impose against a teen convicted of sexting-related crimes will differ significantly depending on the circumstances of each case. In general, the penalties that apply when a juvenile commits a crime are much less severe than those when an adult teen commits a crime.
If you have been charged with any kind of crime, or have been approached by criminal investigators, you need to speak to an experienced Illinois criminal defense attorney at your earliest opportunity. Failing to receive qualified legal advice can seriously jeopardize your legal situation. Always talk to an experienced attorney whenever you need legal advice.