"Sexting" involves the sending of nude or sexually suggestive images electronically, whether through text messaging, social media, chat boards, or email. Sexting has become especially common among teenagers—many of whom are minors—and can easily be used to cyberbully or harass.
States have taken various approaches to address teen sexting. Some have enacted laws prohibiting sexting by or between minors. These laws tend to have penalties that aren't as severe as when an adult sexts with a minor. Other states punish sexting under preexisting laws against child enticement and child pornography, which can result in harsh punishments for both adults and minors.
In North Carolina, sexting images of or to minors can be prosecuted under the state's existing laws relating to child pornography and obscenity. Teens often believe that, if sexting is consensual, it's not a crime. But that's not how the law perceives it. Sexting images of minors—even with the recipient's consent—can result in felony penalties and may require sex offender registration.
North Carolina makes it a felony to create, disseminate (share), or possess an image of a minor (younger than 18) engaged in "sexual activity." The law defines sexual activity as sexual intercourse, the touching of another's clothed or unclothed genitals, pubic area, buttocks, or female breast, or any lewd display of the genitals or pubic area.
Both adults and minors can be prosecuted under this section. Also, the law doesn't require that the image be of another minor engaged in sexual activity or nudity—meaning, it's technically a crime for a minor to take and send sexually explicit selfies. So a 17-year-old who takes a nude selfie and sexts it to a girlfriend can be prosecuted for creating and disseminating the image. The girlfriend could also be charged with possessing a nude image of a minor.
Below are the penalties for sexual exploitation of a minor. The actual punishment will vary based on the class of the offense, the defendant's prior criminal record (if any), and the facts of the particular crime. In addition to imprisonment, the court may also impose a fine in any amount it deems appropriate.
Third-degree sexual exploitation of a minor. Any person who possesses an image of a minor engaged in sexual activity commits a class H felony, punishable by four to 25 months' imprisonment.
Second-degree sexual exploitation of a minor. A person who creates or shares an image of a minor engaged in sexual activity commits a class E felony, punishable by 15 to 63 months (roughly one to five years) in prison.
First-degree sexual exploitation of a minor. The most severe penalty for sexual exploitation of a minor—a class C felony—is reserved for a person who:
A class C felony carries a penalty of 44 to 182 months (roughly four to 15 years) in prison.
(N.C. Gen. Stat. §§ 14-190.13 to 14-190.17A; 15A-1340.17 (2020).)
It's also a crime in North Carolina for anyone to send "harmful material" to a minor (younger than 18). Material that is harmful to minors includes any depiction of sexually explicit nudity or sexual activity.
Similar to sexual exploitation of a minor, both adults and minors can be prosecuted for this crime. But note that this section makes it illegal to sext images to a minor (not images of a minor). So an adult who sends a nude selfie to a child could be prosecuted under this law. This could be an 18-year-old who exchanges nude selfies with a 17-year-old dating partner. An offense under this section is a class 1 misdemeanor, which carries a maximum penalty of 120 days' (four months') jail time.
If the material is deemed to be obscene (patently offensive and appealing to sexual desire), an adult who sends such depictions to a minor younger than 16 faces a class I felony, punishable by three to 12 months' imprisonment.
(N.C. Gen. Stat. §§ 14-190.5, -190.7, -190.15; 15A-1340.23 (2020).)
Sexting cases involving a minor younger than 18 generally fall under the jurisdiction of the juvenile court, rather than adult court. Judges in juvenile court tend to have more discretion than adult court judges in imposing punishments that focus on rehabilitation. For instance, a juvenile court judge might order a minor to participate in community-based programming, such as substance abuse treatment, counseling, or community service. A judge could also impose a curfew for the minor or suspend their driving privileges. Minors who go through juvenile court end up with an adjudication of delinquency (not a conviction).
Adults (including teens age 18 and 19) facing criminal charges are tried in adult court. Under North Carolina's transfer laws, a minor could also end up facing charges in adult court. The law requires judges to transfer juveniles to adult court if they are age 16 or 17 and facing class A to G felony charges. Transfer to adult court is discretionary for 16- and 17-year-olds charged with class H and I felonies. The law also permits transferring minors as young as 13 to adult court if they are charged with a felony. A minor who goes through adult court ends up with an adult conviction and faces adult penalties, such as prison time and sex offender registration.
(N.C. Gen. Stat. §§ 7B-1501, -2200, -2200.5 (2020).)
Any adult or minor tried as an adult who is convicted of sexual exploitation of a minor must register as a sex offender. A minor adjudicated in juvenile court does not have to register. A person who is required to register as a sex offender and fails to do so can be convicted of a felony.
(N.C. Gen. Stat. §§ 14-208.6, -208.7 (2020).)
Any charges that stem from a sexting-related crime can result in serious consequences for those involved. If you or your child has been questioned by the police or charged with a crime, you should speak to an experienced criminal defense lawyer immediately. An experienced attorney will be able to provide you with legal advice and information on the potential consequences of the charges against you.