Sexting images of a minor—someone younger than 17—can result in serious penalties. New York doesn't have a law specific to sexting by and between teens and minors, rather these acts fall under the state's felony child pornography and obscenity laws. In some circumstances, though, the court may offer a teen a break. Read on to learn more about sexting laws in New York.
Sexting refers to the taking, sending, or receiving of nude or sexual photos or videos by electronic means, whether through a text message, social media, or email. Especially common among teenagers, sexting can easily be used to bully or harass others.
Sexting between consenting adults is legal. But, as noted above, acts of sexting with a minor or sexting between minors are illegal, and they fall under New York's child pornography and obscenity laws, which carry felony penalties. Such laws were originally enacted to protect kids from sexual predators (not necessarily from other kids). Some states have addressed the issue of teen sexting by providing reduced penalties for sexting by or between minors. Other states, like New York, created diversion programs that allow teenagers who are involved in sexting to attend educational programs instead of facing tough criminal penalties.
New York created a diversion program that may be used instead of criminal prosecution for teens or young adults involved in sexting. Successful completion of a diversion program often allows a person to avoid prosecution and a record. If the person doesn't complete the program, the criminal or juvenile proceeding can move forward.
A person charged with an offense involving cyberbullying or disseminating (sharing) obscene or nude images of minors may be eligible for New York's diversion program. To participate, both the sender and receiver of the image must be younger than 20 and not more than five years apart in age. Instead of continuing the criminal prosecution, the court may divert the case and order the individual to participate in an education program. The education program focuses on the consequences (both legal and non-legal) of sharing suggestive or abusive materials by computer or online.
(N.Y. Penal Law § 60.37; N.Y. Soc. Serv. Law § 458-L (2022).)
A person who sexts images of a minor or sexts with a minor can face the following criminal penalties.
It's a crime in New York to use the internet or computer system to send a child younger than 17 any obscene material or engage in sexually explicit communication with such a child. For example, a high school senior who sends a freshman a photo of his or her genitals could be convicted under this law. Sharing obscene material with a child is punished more severely if the sender asks the child to engage in sexual activity.
Disseminating obscene material to a minor is a class E felony unless the defendant solicits the child to engage in sexual activity, in which case it's a class D felony. A class E felony carries a maximum four-year prison sentence, and the maximum sentence for a class D felony is seven years. Both carry potential fines of up to $5,000.
(N.Y. Penal Law §§ 70.00, 80.00, 235.20 to .22 (2022).)
New York makes it a crime to create or share an image or video depicting "sexual conduct" by a child younger than 17 (including a selfie). Knowing possession is also a crime but applies to depictions of a child younger than 16. "Sexual conduct" includes actual or simulated sexual intercourse, sexual acts, and lewd exhibition of the genitals.
Under this law, a teenager who shares a nude photo of a 14-year-old girl with friends could be convicted for possessing and distributing child pornography. The friends could also be convicted of possessing child pornography.
A person who creates or shares images of child pornography commits a class D felony, which carries a maximum prison sentence of seven years. If the person encouraged the minor to engage in a sexual performance, the crime becomes a class C felony, and the maximum penalty increases to 15 years. Knowing possession of child pornography is a class E felony and carries a maximum punishment of four years' imprisonment. In addition to prison time, a person convicted of any of these crimes may be sentenced to pay a fine of up to $5,000.
(N.Y. Penal Law §§ 70.00, 80.00, 263.00 to .16 (2022).)
Sex offender registration in New York applies only to individuals who are convicted of a sex offense. Most minors will go through family court or receive youthful offender status in adult court. These minors don't receive a "conviction," and, for that reason, do not have to register.
Adults convicted of child pornography or disseminating indecent materials to minors, however, are required to register.
(N.Y. Correct. Law § 168-a (2022).)
Being convicted of an offense related to child pornography or obscenity can have serious consequences, including incarceration, a fine, and a very serious criminal record. If you or your child is charged with any offense as a result of teen sexting, you should contact a New York criminal defense attorney. An experienced attorney can provide you with invaluable advice and protect your rights.