“Sexting” involves the sending of nude or sexually explicit photos electronically, such as through texts, messaging, email, and social media chats. Generally, sexting by and between adults (involving images of adults) is legal, whereas sexting that involves a minor or images of a minor is prohibited.
Some states have enacted laws that specifically address sexting by and between minors. These “teen sexting” laws tend to have less harsh penalties than states that punish sexting under preexisting laws prohibiting child pornography or child enticement.
Minnesota is one of the states that does not have a “teen sexting” law. Minors who engage in sexting in Minnesota can face criminal charges for child pornography, including harsh felony penalties and sex offender registration.
Under Minnesota’s laws, anyone (adult or minor) who creates, disseminates (shares), or possesses a visual image depicting “sexual conduct” involving a minor younger than 18 can be prosecuted for child pornography.
Sexual conduct. “Sexual conduct” includes sexual intercourse, masturbation, lewd exhibition of the genitals, and physical contact (in a sexual manner) with the clothed or unclothed pubic area, buttocks, or female breast.
Selfies. Minnesota's child pornography laws prohibit creating, sharing, or possessing a sexual image of any minor—including oneself. (Some states' laws only penalize creating or sending an image of another minor.) Under Minnesota's law, a 15-year-old girl who sexts a nude selfie to a boyfriend could be prosecuted for disseminating (sharing) child pornography.
A person (adult or minor) who creates, shares, or possess an image of minor engaging in sexual conduct commits a felony in Minnesota. An enhanced penalty applies if any of the following are true:
Use of a minor in creating child pornography can be punished by up to 10 years in prison and a $20,000 fine. The enhanced penalty increases the maximum sentence to 15 years in prison and a $40,000 fine.
Disseminating child pornography carries a maximum sentence of seven years in prison and a $10,000 fine. The enhanced penalty is a 15-year felony with a $20,000 fine.
Possessing child pornography, knowing of its illegal content, can be punished by up to five years in prison and a $5,000 fine. The enhanced penalty goes up to a 10-year felony sentence and a $10,000 fine.
Under these provisions, a 17-year-old boy who takes a nude picture of his 15-year-old girlfriend and sends it to his friends has committed two felony offenses for creating and disseminating child pornography, and his friends could be prosecuted for possessing child pornography. (Consent by the underage girlfriend is not a defense.) If the 15-year-old girl had sent a nude selfie to her boyfriend, she could be charged with disseminating child pornography and he could be charged with possession of child pornography.
(Minn. Stat. §§ 617.246, .247 (2020).)
An adult (18 or older) who uses a communications device to sext an image to a child age 15 or younger can be charged with a felony. To fall under this crime, the image must depict sexual conduct (similar to the definition above), and the person must intend to arouse the sexual desire of any person. Under this section, an 18-year-old adult who sexts a sexually explicit selfie to a 15-year-old could face a three-year prison sentence and a fine up to $5,000. (Minn. Stat. § 609.352 (2020).)
Sexting and Federal Law
Depending on the circumstances, sexting can also be a crime under federal law. Prosecutors have several tools at their disposal even though there’s no federal law specifically addressing sexting.
Among these tools is the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003. The Act makes it illegal to use a computer to send or receive:
Federal law also makes it a crime for someone to cause a minor to take part in sexually explicit conduct in order to portray that conduct. Parents are included in those who can be prosecuted, if they consented to the minor’s participation.
But federal prosecution of juveniles for sexting could 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. §§ 1466A, 2251, 2252, 2252A, 5032 (2020).)
Minnesota juvenile courts typically hear cases involving offenses by minors age 10 to 17. The juvenile court has more discretion and flexibility when it comes to sentencing (called a disposition) than an adult court. A juvenile court judge could order the minor to attend counseling, complete educational programming, or report to a probation officer. In some cases, the court can order juvenile detention.
While sexting cases can be heard in juvenile court, Minnesota law authorizes certain juveniles to be transferred to adult court. This transfer option only applies to minors age 14 or older who are charged with a felony. Before authorizing the transfer, the juvenile court judge must evaluate whether public safety is best served by trying the minor in juvenile or adult court. A minor tried as an adult faces adult penalties.
As another option, Minnesota law authorizes prosecution offices to set up pretrial diversion programs for first-time juvenile offenders charged with certain felonies, including child pornography. Pretrial diversion programs allow the juvenile offender to participate in programming, treatment, and education services. Successful completion results in dismissal of the charges. (The law only authorizes these programs; it does not require them.)
(Minn. Stat. §§ 260B.125, 388.24 (2020).)
Both adults convicted of and juveniles adjudicated for child pornography are required to register as sex offenders (called predatory offenders under Minnesota law). The law does not provide any leeway for juvenile offenders to avoid registration. Unlike some states, judges have no say in registration requirements, and the law doesn’t allow juveniles to petition for early termination of registration. (Minn. Stat. § 243.166 (2020).)
If you are or your child is charged with child pornography or any other crime as a result of sexting, you should talk to a Minnesota criminal defense attorney immediately. A conviction or adjudication for any crime, but particularly for a sex crime, can have serious consequences, including years in prison or a juvenile facility, sex offender registration, and a criminal record. An attorney can tell you what to expect in court and how to protect your rights.