Sexting is the sending of nude or sexually explicit photos by electronic means, such as a text message. Some states, like New Jersey, have specific legislation that deals with teen sexting. In states without specific legislation, children who share nude or suggestive photos depicting people younger than 18 can be convicted of crimes under the state’s child pornography laws, which are intended to target adult sexual predators and carry commensurate penalties. For example, before New Jersey’s teen sexting law was enacted in 2012, one 14-year-girl in Passaic County was charged with possession and distribution of child pornography after she posted a bevy of explicit photos of herself on her Myspace page. Although the charges were later reduced, and the girl ultimately received counseling and probation, she could have faced years of confinement and mandatory sex offender registration had she been convicted of the more serious charges.
For more general information on sexting, see Teen Sexting.
There are few reliable indicators of how widespread sexting actually is among teenagers, but it's clear that a significant number of teens have sent or received nude or explicit photos from dates, friends, and classmates. Interviews with teenagers show that many teens don't understand the full consequences of sexting. In addition to getting into legal trouble, students may also be disciplined at school. Private images can very easily be distributed and made public, causing distress, harassment, and lasting damage to a teen’s reputation. If photos end up on the Internet, they may be difficult to remove, leading to a permanent record of the worst kind.
New Jersey has created a diversion program that may be used in lieu of criminal prosecution for teens who are charged with child pornography as a result of sexting. If the judge feels that it is appropriate, children who create, distribute, or exhibit images that qualify as child pornography may be ordered to participate in an educational program or counseling that addresses the consequences of sexting instead of being criminally prosecuted, so long as the creator and subject of the image are both younger than 18. (N.J. Stat. Ann. § 2A:4A-71.1.)
For example, suppose a 13-year-old girl takes topless photos of a friend. She sends those photos to her friend’s crush, a boy age 14, with her friend’s permission. He forwards them on to two of his friends, also age 14, who both look at the picture, but quickly delete it. All of these children have violated New Jersey's law against child pornography. However, under the state’s diversion law, the court could decide to halt any criminal prosecution and order the children to participate in counseling or education, rather than face criminal penalties. However, if the children are more culpable (for example, older teens taking and posting on a public website explicit photos of their sexual partners without the partners’ permission), then the court still has the discretion to allow the prosecution for child pornography to go forward.
In New Jersey, a person who causes a child (a person younger than 18) to engage in a sexual act or appear nude for the purpose of making a photograph or film, or who photographs or films a child nude or engaging in sexual conduct, commits the crime of child pornography (also called endangering the welfare of a child). It is also a crime to give to someone else, offer to give to someone else, transfer, disseminate, distribute, circulate, or possess pornography depicting a child. (N.J. Stat. Ann. § 2C:24-4.)
For more information on sex crimes involving the use of computers, see Child Enticement Laws in New Jersey.
In New Jersey, it is also a crime for anyone to sell, distribute, rent, or exhibit to a child anything obscene, or for a person more than four years older than a child to show that child anything that is obscene for a sexual purpose. Almost any photograph, image, or video that is sexual in nature could be considered obscene. For example, a 19-year-old who sends a 13-year-old a nude photo, along with sexually suggestive remarks, could probably be convicted under this law.
Child appears to be of age. It is a defense to a charge of promoting obscene material to a child that the child represented him or herself to be age 18 or older and looked to be 18 or older, and the defendant reasonably believed the child to be that old. (N.J. Stat. Ann. § 2C:34-3.)
Possession of child pornography is a crime of the third degree, punishable by three to five years in prison and a fine up to $15,000. Making and distributing child pornography are crimes of the second degree, punishable by between five and ten years’ imprisonment and a fine up to $150,000. Promoting obscene material to children is also a crime of the third degree. (N.J. Stat. Ann. § § 2C:24-4, 2C:34-3.)
People convicted of making or distributing child pornography are required to register as sex offenders in New Jersey, even if the person is convicted of the crime when younger than 18. Usually, sex offender registration in New Jersey is mandatory for the remainder of the offender’s life, although offenders who have only one conviction can ask to be removed from the registry after 15 years. A person who is required to register (provide personal information to local police on a periodic basis) and fails to do so can be convicted of a crime. (N.J. Stat. Ann. § 2C:7-2.)
A criminal record, especially for a sex crime, can make it difficult to obtain a job or a professional license, or even rent an apartment. Of course, these consequences are in addition to incarceration, fines, and lifetime sex offender registration. If you are or your child is accused of a crime related to teen sexting, you should talk to a criminal defense attorney. An experienced attorney who practices in New Jersey can determine whether you have any grounds for dismissal or are in a good position to negotiate a plea. An attorney can help you navigate the criminal justice system and protect your rights.