“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.
Indiana is one of the states that has addressed specifically addressed teen sexting. It has also taken up the issue of sexting between young adults and minors in a relationship. Felony charges remain an option, though, if the conduct involved goes beyond the teen sexting statute.
In Indiana, sexting images of or to a minor depicting sexual conduct or obscene images constitutes a felony. Depending on the conduct and circumstances, the crime could fall under the state’s laws prohibiting child exploitation, child pornography, or dissemination of harmful material to minors.
Indiana law, however, provides a defense to the above felony charges in certain cases involving consensual sexting between minors or a young adult and a minor. And a separate law—indecent display by a youth—provides a misdemeanor penalty for sexting between minors.
Indiana prohibits sexting by and between minors (younger than 18). But the law allows minors to avoid harsh felony penalties in situations involving consensual sexting between minors in a relationship who are close in age.
Indiana’s law makes “indecent display by a youth” a class A misdemeanor. The law applies to minors who knowingly:
on a smart device, cellphone, social media website, or other wireless communication device. The individuals involved must be close in age (not more than four years apart) and be involved in a dating or ongoing personal relationship. And the child depicted in the image cannot be younger than 12.
Outside of these circumstances, minors can face the felony penalties below—for instance, if the sexting was nonconsensual, the minors involved were more than four years apart in age, or the image depicts a child younger than 12.
(Ind. Code § 35-45-4-6 (2019).)
Other sexting crimes involving minors fall under Indiana’s felony laws prohibiting child exploitation, possession of child pornography, and dissemination of harmful material to a minor. Generally, these crimes will apply to acts committed by adults (18 and older), but in some situations, they could apply to acts committed by minors.
A person who knowingly creates, shares, or offers to share an image that depicts a child (younger than 18) engaged in sexual conduct commits child exploitation, a Level 5 felony. The penalty increases to a Level 4 felony in situations involving aggravating factors, such as the use of force, the threat of force, or the child depicted is younger than 12.
A person who has a sexually explicit image of a child on a phone or other device could be charged with possession of child pornography. Knowing possession of an obscene image that depicts a child (younger than 18) engaged in sexual conduct constitutes a Level 6 felony offense. The offense becomes a Level 5 felony when aggravating factors are involved.
It’s a Level 6 felony to knowingly sext a minor (younger than 18) an obscene or pornographic image.
The law provides a defense to the above felony charges for consensual sexting between a young adult and minor. The defense applies to individuals in relationships who are close in age (for instance, a 17-year-old and 19-year-old). Basically, the law treats these relationships similar to adult relationships.
The “young adult relationship” defense applies only if all the following are true.
This defense must be raised and proven by the defendant.
(Ind. Code §§ 35-42-4-4, 35-49-3-3, 35-49-3-4 (2019).)
Minors under the age of 18 fall under the jurisdiction of Indiana’s juvenile court. Most minors will be tried in juvenile court. If the minor is age 16 or 17, has a record, and is accused of committing a felony, the prosecutor can ask the judge to transfer the minor to adult court to face adult penalties. Minors as young as 14 can also be transferred to adult court if the minor has a pattern of breaking the law. (Ind. Code §§ 31-30-7-2, -6; 31-37-1-1 (2019).)
Because the teen sexting law (indecent display by a youth) is a misdemeanor, these cases would be heard in juvenile court. Even if a minor is charged with a felony, transfer to adult court is discretionary (optional), so it’s likely most felony cases would be heard in juvenile court as well.
In 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.
A person age 18 or older would be tried in adult court for a sexting crime involving a minor. Depending on the offense (child exploitation, possession of child pornography, or dissemination of harmful material to a minor), the penalties for range from a Level 4 to a Level 6 felony, with maximum sentences ranging from six months to six years’ imprisonment and a fine up a $10,000.
(Ind. Code §§ 35-50-3-2, -5.5, -6, -7 (2019).)
Anyone convicted of child exploitation or possession of child pornography in adult court (a minor or adult) must register as a sex offender in Indiana. A minor tried in juvenile court for either of these felony offenses must register, if the minor is 14 or older, was placed in a detention facility for the offense, and is found by the court to be likely to repeat the act. (Ind. Code §§ 11-8-8-4.5, -5, -7 (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 proper legal advice about your case and protect your rights.