"Sexting" is the sending of nude or sexually suggestive images 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 bully or harass.
States have taken various approaches to address teen sexting. Some punish sexting under preexisting laws against child enticement and child pornography, which often result in harsh, felony penalties. Other states have enacted laws addressing sexting between teens with reduced penalties that allow teenagers to avoid a felony conviction and sex offender registration. Additionally, some states are addressing cyberbullying and harassment in sexting laws by imposing tougher penalties if the sender sends an image intending to harass, threaten, or intimidate another.
Illinois has addressed teen sexting by punishing certain acts under the juvenile supervision laws, which avoids a delinquency record and sex offender registration. But the wording of the law is very narrow, and prosecutors can still prosecute sexting by minors under harsher laws.
Illinois prohibits a minor (younger than 18) from sharing an "indecent visual depiction" of another minor over a computer or wireless device. An "indecent visual depiction" means an image depicting lewd exhibition of the genitals, pubic area, buttocks, or female breasts. A minor who violates this section can be adjudicated in need of supervision (rather than delinquency) in the juvenile court. The court can order the minor to obtain counseling or other supportive services or to perform community service.
But the law only addresses a minor sexting someone an image of another minor. It doesn't address the situation of a minor sending a nude or sexually explicit selfie to another minor. This scenario could fall under harsher laws, such as dissemination of child pornography, discussed below.
(705 Ill. Comp. Stat. Ann. § 405/3-40 (2019).)
Any person (adult or minor) who sends or receives sexually explicit images of a minor can be prosecuted under Illinois' laws prohibiting child pornography and distributing harmful images to a minor.
It is a crime to knowingly create, share, offer to share, or possess with intent to share an image of a child younger than 18 engaged in a sexual act or depicted in a state of lewd nudity (showing unclothed or transparently clothed genitals, pubic area, buttocks, or female breast).
A prosecutor could charge a minor who sexts a nude selfie to another person or voluntarily receives a sext from another minor with child pornography. An adult who sends or voluntarily receives sexually explicit images of a minor also commits child pornography.
The penalties for child pornography are harsh. Depending on the circumstances, child pornography is a class 1, 2, or 3 felony that carries penalties ranging from two to 15 years in prison and fines up to $100,000. If the image depicts a child younger than 13, the penalties can increase up to a Class X felony with a maximum 30-year sentence.
(720 Ill. Comp. Stat. Ann. § 5/11-20.1; 730 Ill. Comp. Stat. Ann. §§ 5/5-4.5-25 to -40 (2019).)
Anyone in Illinois who knowingly distributes sexually explicit images to a minor (younger than 18) 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. The penalty for a Class 4 felony is up to three years in prison. A Class A misdemeanor carries up to a year's imprisonment.
An adult who sexts a sexually explicit selfie to a minor could be charged under this section. It would also be a crime for a minor to sext a sexually explicit selfie or other harmful material to another minor.
(720 Ill. Comp. Stat. Ann. § 5/11-21; 730 Ill. Comp. Stat. Ann. §§ 5/5-4.5-45 to -55 (2019).)
Minors younger than 18 who are accused of committing a crime typically go through the juvenile justice system. But, in certain cases, minors age 13 and older can be transferred to adult court and face adult penalties. A judge decides whether it's in the best interest to try the minor in juvenile or adult court.
Juvenile penalties. The types of penalties juvenile courts can give are very different than those that might apply in adult court. For example, if a minor in Illinois is involved in the electronic dissemination of an indecent visual image, the court can order that minor to obtain counseling or perform community service. For other offenses, minors might be forced to pay a fine, serve probation, or serve time in a juvenile facility.
Adult penalties. An adult or minor convicted in adult court of child pornography or a similar crime faces harsh penalties, including lengthy prison sentences, steep fines, and a felony record.
(705 Ill. Comp. Stat. Ann. §§ 405/5-105, -805 (2019).)
Illinois requires both adults and minors convicted or adjudicated delinquent for child pornography to register as a sex offender. Minors who go through juvenile court can ask the court to end the registration requirement after five years. (This option doesn't apply for minors who go through adult court.)
(730 Ill. Comp. Stat. Ann. §§ 150/2, 150/3-5 (2019).)
Charges resulting from sexting involving a minor can result in very serious consequences for those involved. If you've been questioned by the police or charged with a sexting crime, speak to an experienced criminal defense lawyer immediately. An attorney can provide you with legal advice about your case and protect your rights.