Sexting involves the sharing of sexually explicit photos by electronic means, whether by text message, social media, chat boards, or messaging. This conduct is especially prevalent among teenagers.
States have taken various approaches to teen sexting. Some have enacted laws that specifically address and prohibit sexting by and between minors with penalties that reflect this new social phenomenon. But in states, such as Michigan, that have no specific legislation dealing with this issue, sexting images of minors (younger than 18) often falls under preexisting child pornography laws.
Teens often think that consensual sexting is legal, but that's not how Michigan law sees it. Sexting images of minors can result in felony penalties for anyone who creates, shares, or possesses the image. It's also a felony to encourage a minor to create a sexually explicit image or to send a sexually explicit image to a minor.
Michigan's child pornography law (referred to as "child sexually abusive material") makes it unlawful to solicit, create, share, or possess images of a minor (younger than 18) engaged in a sexual act. A "sexual act" includes sexual intercourse, masturbation, or lewd exhibition of nudity.
An adult or minor can be prosecuted under the law. And the law doesn't require that the image be of another minor—so a minor who takes or sexts a nude selfie also violates the law. Below are the penalties for violations of the child pornography laws, as well as a separate penalty for using technology to commit the violation.
Possession. A person who knowingly possesses a sexually explicit image of a minor faces up to four years' prison time and a $10,000 fine.
Distribution. Sharing a sexually explicit image of a minor can result in up to seven years in prison and a $50,000 fine.
Creation. The harshest penalty—a 20-year felony—applies to producing sexually explicit images of a minor or persuading a minor to produce a sexually explicit image. This section applies to a broad range of acts, such as a minor taking a nude selfie, a boyfriend asking his 17-year-old girlfriend to send him topless photos, or someone taking pictures of a minor engaged in a sexual act.
Using a computer or smartphone. A person who solicits a minor for sexually explicit material (such as a nude selfie) through a computer, cellphone, or smartphone faces an additional penalty. The exact penalty depends on the underlying offense. Take the above example of the boyfriend asking for a topless photo of his 17-year-old girlfriend. He could face an additional 20-year sentence if he sent a text or email to the girlfriend asking her to take and send a topless photo.
(Mich. Comp. Laws §§ 750.145c, .145d, .145g (2020).)
Michigan also makes it a felony to share sexually explicit matter with a minor younger than 18. Under this section, the image doesn't need to be of a minor but rather sent to a minor. Here, an adult who sexts a nude selfie to a minor would be guilty of a felony, punishable by a two-year prison sentence and a $10,000 fine. A minor sexting images to another minor could also be charged under this section. (Mich. Comp. Laws § 722.675 (2020).)
Minors under the age of 17 fall under the jurisdiction of the juvenile court (with some exceptions). Juvenile court judges tend to have broad discretion in imposing punishments, such as ordering community service, treatment, monitoring, and curfews. In juvenile court, the minor does not receive an adult conviction but rather an "order of disposition."
Michigan law, however, allows judges to transfer certain minors to adult court, including minors age 14 to 16 accused of a felony. In adult court, the minor would face adult penalties, including prison time and sex offender registration.
Teenagers age 17 to 19 are always considered adults in Michigan's justice system. (As of October 1, 2021, Michigan will automatically put 17-year-olds under the jurisdiction of the juvenile court, rather than adult court.)
(Mich. Comp. Laws §§ 712A.1 to 712A.4 (2020).)
People who are convicted of child pornography (creating, sharing, or possessing child sexually abusive material) must register as sex offenders in Michigan. Registration applies to adults and minors transferred to adult court. (While Michigan does require certain juvenile offenders to register, these registration requirements do not apply to offenses listed in this article.) (Mich. Comp. Laws §§ 28.722, 28.723 (2020).)
If you or your child is charged with a sexting-related crime, talk to an experienced criminal defense attorney in Michigan. A conviction for any crime, but particularly for a sex crime, can have serious consequences, including years in prison or a juvenile facility. Ask an attorney about possible diversion options for a juvenile offender. An attorney can tell you what to expect in court and how to present the strongest defense.