"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 bully or harass.
Some states 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 were intended to target adult sexual predators and carry harsh penalties.
Pennsylvania is one of the states that has specifically addressed teen sexting by creating lower-level penalties that apply to certain teenage behavior. But minors can still face felony penalties if their conduct is especially harmful.
For more general information on sexting laws, see Teen Sexting.
In 2012, Pennsylvania enacted a law prohibiting the sexting of "sexually explicit images" by minors younger than 18. Sexually explicit images include those involving nudity or depicting a minor's genitals, pubic area, breast, or buttocks in a sexual manner.
Minors whose actions fall under the teen sexting law face misdemeanor penalties, rather than the harsher felony penalties under the child pornography laws.
Pennsylvania's teen sexting law increases the applicable penalties based on the conduct involved.
Sexting selfies. The law makes it a summary offense for a minor to knowingly send, share, or publish a sexually explicit selfie.
Sexting images of another minor. It's also a summary offense for a minor to knowingly possess or view a sexually explicit image of another minor age 12 or older. If the minor knowingly sends, shares, or publishes the image, though, the penalty increases to a third-degree misdemeanor.
Sexting to harass. A minor commits a second-degree misdemeanor when the minor takes or shares a nude image of another minor without permission and in order to harass, intimidate, or cause emotional distress to the minor depicted in the image.
The penalties for sexting by minors range from a summary offense to a second-degree misdemeanor.
Summary offense and diversion. A summary offense carries a penalty of up to 90 days' incarceration and a $300 fine. For these low-level offenses, the minor is first referred to a diversion program. A diversion program requires the minor to participate in an educational program that covers the legal and nonlegal consequences of sexting. If the minor successfully completes the program, the judge will expunge (dismiss and seal) the charges.
Misdemeanor offenses. Minors who share sexually explicit images of another minor face misdemeanor charges. A third-degree misdemeanor carries up to one year's incarceration and a $2,500 fine. Second-degree misdemeanors can be punished by up to two years' incarceration and a $5,000 fine.
Forfeiture of device. In addition to these penalties, the device used in any of the above violations must be forfeited (confiscated by police without compensation).
Other charges possible. Behavior that is especially harmful, such as sexting images of children younger than 12 or children engaged in sexual acts (vs. nudity), falls under the harsher child pornography and obscenity penalties discussed below.
(18 Pa. Cons. Stat. Ann. §§ 1101, 1104, 1105, 5702, 6321 (2020).)
Adults—including teenagers age 18 and 19—who sext with minors or take nude photos of minors can face felony charges under Pennsylvania's child pornography and obscenity laws.
Depending on the situation, a minor (younger than 18) can also be charged with these offenses, such as when sexting involves images of minors engaged in sexual acts or sexually explicit images of children younger than 12.
Pennsylvania's child pornography laws (called sexual abuse of children) apply when a person knowingly:
It is also a crime for a person to intentionally view or knowingly possess child pornography.
A person who sends or shares "explicit sexual materials" with a minor younger than 18 commits a felony. Explicit sexual materials include obscene images and images depicting nudity or sexual conduct. For instance, an 18-year-old would be committing a felony by sending a nude selfie to a 17-year-old dating partner.
A person convicted of committing the above crimes faces second- or third-degree felony penalties. The penalty for a third-degree felony includes up to seven years in prison and a $15,000 fine. A second-degree felony may be punished by up to 10 years in prison and a $25,000 fine.
Child pornography. A first offense for possessing or distributing child pornography is a third-degree felony. Any subsequent offense increases the penalty to a second-degree felony. Acts involving creating child pornography constitute second-degree felonies. Any of these offenses that involve indecent contact with a child increases the penalty by one level (for instance, a third-degree felony becomes a second-degree felony).
Dissemination of obscenity to minors. A first offense for disseminating obscene images to a minor is a third-degree felony. A person convicted of a subsequent offense faces second-degree felony charges.
(18 Pa. Cons. Stat. Ann. §§ 1101, 1103, 5903, 6312 (2020).)
Whether a minor ends up in juvenile or adult court depends on the age of the minor and the alleged charges. Most minors who are between the ages of 10 and 17 fall under the jurisdiction of Pennsylvania's juvenile court. But minors age 14 and older who are charged with a felony can be transferred to adult court.
Minors automatically end up in juvenile court if they are:
Juveniles who are 14 or older and charged with a felony can remain in juvenile court or be sent to adult court.
Sexting by minors. Because the teen sexting law carries summary and misdemeanor penalties, these cases would be heard in juvenile court.
Child pornography or obscenity. A minor age 10 to 13 charged with a felony would also remain in juvenile court. Minors age 14 or older facing felony charges are initially placed in juvenile court, but the judge may transfer the minor to adult court if it's in the public interest.
Juvenile justice process. In the juvenile justice process, courts and prosecutors have much broader discretion in determining appropriate sentences. For example, the court may order the juvenile to pay a fine, be supervised on probation, or complete treatment, educational programming, or community service hours. A juvenile who is found guilty of the offense is adjudicated delinquent (and does not receive a "conviction.") As noted above, a first-time summary offense will initially be sent to diversion.
The adult criminal court process does not afford as much flexibility as juvenile court. A felony conviction can mean jail time or a prison sentence, fines, and a criminal record.
Adults. A person age 18 or older would be tried in adult court for a sexting crime involving a minor (under the child pornography or obscenity law).
Minor tried as an adult. If the judge transfers a minor to adult court, the minor also faces adult penalties and adult consequences.
(42 Pa. Cons. Stat. §§ 6302, 6355 (2020).)
In Pennsylvania, any individual convicted of a child pornography crime or an obscenity offense when children are involved must register as a sex offender. Juveniles tried and adjudicated delinquent in juvenile court do not have to register.
The registration requirement applies to adult offenders and appears to apply to juveniles tried as adults. (Case law provides that mandatory, lifetime registration for crimes committed by juveniles is unconstitutional. It's less clear if later rulings applied the same rule to non-lifetime registration for juveniles tried as adults.)
(42 Pa. Cons. Stat. §§ 9799.12, .14, .15 (2020); Commonwealth v. Haines, 222 A.3d 756 (Super. Ct. Pa. 2019).)
If you or your child faces charges relating to sexting with minors, contact a local criminal defense attorney right away. An experienced lawyer can provide you with appropriate legal advice, protect your rights, and inform you of the potential consequences of a juvenile adjudication or adult conviction.