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 sexually suggestive photos of minors can be convicted of crimes under a state's child pornography or child enticement laws, which are intended to target adult sexual predators and carry harsh penalties.
For example, before New Jersey passed its teen sexting law in 2012, one 14-year-girl in Passaic County was charged with possession and distribution of child pornography after posting 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.
New Jersey created a diversion program that may be used in lieu of criminal prosecution for teens and minors (younger than 18) who are charged with child pornography as a result of sexting.
If appropriate, the judge may order a child who creates, distributes, or exhibits images that qualify as child pornography to participate in an educational program or counseling that addresses the consequences of sexting. To qualify for diversion, the creator and subject of the image must both be younger than 18. Diversion programs allow a child to avoid juvenile or criminal prosecution and record.
Say a 13-year-old girl takes topless photos of a friend. She sends those photos, with her friend's permission, to her friend's 14-year old crush. 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 (see definition below). But, in this situation, the judge could authorize diversion so the children can receive counseling instead of a felony record. On the other hand, if the children are more culpable (say older teens taking explicit photos of their sexual partners and posting them on the Internet without permission), then the court might decide to allow the prosecution for child pornography to go forward.
(N.J. Stat. Ann. § 2A:4A-71.1 (2019).)
The New Jersey law that prohibits child pornography is referenced in statute as "endangering the welfare of a child." It applies to both adults and minors who sext images of children (younger than 18). For minors, this also includes selfies.
Crime. A person who photographs a child (younger than 18) engaged in a sexual act or portrayed in a sexually suggestive manner commits the crime of child pornography. It's also a crime to knowingly distribute or possess a sexually suggestive image of a child.
Penalties. A person who creates, distributes, or possesses with intent to distribute child pornography commits a crime in the second degree. Crimes in the second degree carry a 10 to 20-year sentence and up to $150,000 in fines. Knowing possession of child pornography is a crime of the third degree, which can be punished by five to 10 years' incarceration and up to a $15,000 fine.
Additional civil penalties. Upon conviction or adjudication of delinquency, the court must also assess a civil penalty of $1,000 for a crime of the second degree and $750 for a crime of the third degree. The penalties fund computer crime prevention efforts.
(N.J. Stat. Ann. §§ 2C:24-4; 2C:43-3, -3.8, -7 (2019).)
In New Jersey, it's also a crime to send obscene material to a child younger than 18. Under this law, it would be a crime for an adult to sext an obscene selfie or other obscene images to a child. A minor who sexts obscene images to another minor could also be charged under this law.
Almost any photograph, image, or video that is sexual in nature could be considered obscene. Promoting obscenity to children is a crime of the third degree, punishable by five to 10 years' incarceration and a $15,000 fine.
(N.J. Stat. Ann. § 2C:34-3 (2019).)
Juveniles under the age of 18 fall under the jurisdiction of New Jersey's juvenile court. Before 2015, juveniles age 14 and older could be transferred to adult court for a myriad of offenses. But changes to the law now provide that only juveniles age 15 and older who commit a serious offense (listed in statute) can be transferred. Child pornography and promoting obscenity to children are not listed among the offenses that require transfer to adult court.
In the juvenile court process, judges and prosecutors have more discretion in fashioning sentences. As noted above, in certain cases, the court can divert juvenile offenders out of the juvenile delinquency process and offer counseling services. But even within the delinquency process, judges can sentence juveniles to probation, counseling, educational programming, and community service. In more egregious cases, courts can send juveniles to detention facilities.
(N.J. Stat. Ann. §§ 2A:4A-22, -26.1 (2019).)
Adults and minors convicted of, or adjudicated delinquent for, creating or distributing child pornography must register as sex offenders. (No registration is required if the conviction is for possession without intent to distribute.)
The registration law contains an exception for certain teen sexting cases. Minors adjudicated delinquent for child pornography do not have to register as sex offenders, as long as the sexting was consensual and the creator and subject of the image were both younger than 18.
(N.J. Stat. Ann. § 2C:7-2 (2019).)
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. And these consequences are in addition to incarceration and fines. If you or your child has been 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 help you navigate the criminal justice system and protect your rights.