In most instances, Indiana law prohibits teen sexting. The state reserves the harshest penalties for nonconsensual sexting and sexting involving an adult and a minor. Sexting between minors that's consensual will often be handled as a misdemeanor offense.
"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.
For the most part, yes. Consensual sexting where both parties are 18 or 19 is generally not prohibited, because these teens are adults. But when it comes to sexting by or to minors (younger than 18), most sexting—even consensual—is prohibited.
Indiana handles consensual sexting between minors (younger than 18) in a dating relationship as a misdemeanor offense.
Nonconsensual sexting between minors, sexting by an adult (including teens ages 18 and 19) to a minor, or sexting images depicting a minor can mean felony penalties. Depending on the conduct and circumstances, the crime could fall under the state's laws prohibiting child exploitation, child pornography, or the dissemination of harmful material to minors.
Indiana law provides a limited defense to these felony charges in certain cases involving consensual sexting between minors or a young adult and a minor.
We'll dive into the details of these laws next.
Indiana is one of just a few states that have specifically addressed teen sexting. The state has also taken up the issue of sexting between young adults and minors who are dating. By doing so, teens engaging in consensual sexting may avoid a felony sex offense on their record. But if the conduct goes beyond these exceptions, felony charges remain an option.
Indiana prohibits sexting by and between minors (younger than 18). But rather than felony charges, Indiana created a new law—indecent display by youth—that carries misdemeanor penalties for certain consensual sexting between dating minors.
Indecent display by youth is a class A misdemeanor. This law applies only to minors (those younger than 18) who:
The person receiving or depicted in the image must have consented to the conduct.
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 (2021).)
Other sexting crimes involving minors may 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.
Child exploitation. 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 when the child depicted is younger than 12.
Possession of child pornography. 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.
Dissemination of harmful material to a minor. It's a Level 6 felony to knowingly sext an obscene or pornographic image to a minor (younger than 18).
The law provides a defense to the above felony charges for consensual sexting between a young adult and a minor. It applies to individuals in relationships who are close in age (for instance, a 17-year-old and 19-year-old).
The "young adult relationship" defense applies only if all the following are true.
This defense must be raised and proven by the defendant. If proven, the defendant would be acquitted of the felony charges.
(Ind. Code §§ 35-42-4-4, 35-49-3-3, 35-49-3-4 (2021).)
Minors under the age of 18 fall under the jurisdiction of Indiana's juvenile court. Most minors charged with the above offenses would face delinquency charges (rather than criminal charges) and 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.
Because the teen sexting law (indecent display by a youth) is a misdemeanor, these cases will be heard (adjudicated) 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. Juveniles don't receive a conviction; they receive an adjudication of delinquency.
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 range from a Level 4 to a Level 6 felony, with maximum sentences between six months and six years' imprisonment and fines up to $10,000.
(Ind. Code §§ 31-30-3-2, -6; 31-37-1-1; 35-50-3-2, -5.5, -6, -7 (2021).)
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 only 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 (2021).)
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.
To learn more about Indiana's Juvenile Justice System, click here.