Sexting is the sending of nude or sexually explicit images via electronic communication, whether by text, chat, social media, or email. With the increase in teenagers owning and using smart devices, sexting has become especially prevalent among minors.
While consensual sexting between adults (of adult images) is generally legal, sexting that involves images of a minor is almost always prohibited. Some states punish sexting images of minors under preexisting laws that criminalize child pornography or child enticement. Other states have enacted legislation that specifically addresses sexting by and between teenagers. Teen sexting laws tend to have penalties that are less harsh than those imposed under preexisting laws that were intended to punish sexual predators.
South Carolina is one of the states that has not enacted a law specific to teen sexting. Rather, sexting images of and to minors falls under laws prohibiting child pornography and disseminating obscenity to minors—both of which carry harsh felony penalties and require sex offender registration.
A person who sexts images of or to a minor can face felony charges under South Carolina's laws prohibiting sexual exploitation of minors (child pornography) and dissemination of obscene or harmful materials to minors.
Definitions. The following terms are used in these laws. "Sexually explicit nudity" includes uncovered or semi-transparent showing of genitals, pubic area, buttocks, or a female nipple or covered male genitals in a turgid state. "Sexual activity or conduct" includes sexual intercourse, masturbation, and sexual touching of genitals, public area, buttocks, or a female nipple.
Selfies. South Carolina's laws do not distinguish between sending images of oneself or another minor, so presumably, a minor who sexts a selfie could be prosecuted under these laws.
Any individual (adult or minor) who knowingly creates, disseminates (shares), receives, or possesses a digital file that depicts a minor engaged in sexual activity or in a state of sexually explicit nudity commits the crime of second-degree sexual exploitation of a minor.
Image of a minor. This law prohibits any sexting between adults or minors that involves an image of a minor. For instance, if a minor sexts a selfie to an 18-year-old boyfriend, both the minor (creator/sender) and adult boyfriend (receiver/possessor) could be prosecuted under this section.
Penalties. The penalty for knowingly creating, sharing, or receiving a sexually explicit image of a minor is a felony punishable by two to ten years in prison. Knowing possession of this material is a third-degree crime, which also carries a maximum sentence of ten years' imprisonment but does not have a minimum sentence. (S.C. Code Ann. §§ 16-15-405, -410 (2021).)
Any person who disseminates obscenity commits a five-year felony in South Carolina. The penalty increases when an adult sends obscene material to a minor.
"Obscenity" is a depiction of sexual conduct that is patently offensive (repugnant and distasteful) and reflective of purely lustful purposes.
South Carolina makes it a crime for an adult to disseminate obscene images to children. Sexting an obscene image to a minor age 12 or younger constitutes a 15-year felony. If the minor is age 13 to 17, the penalty is a 10-year felony. (S.C. Code Ann. §§ 16-15-305, -345, -355, -385 (2021).)
(Note: South Carolina law also makes it a 10-year felony for any person—adult or minor—to send harmful material to a minor. "Harmful material" includes a digital image depicting sexually explicit nudity or sexual activity. However, this statute was held unconstitutional as it applies to digital files sent or received via the Internet. Given this ruling, it doesn't seem likely a prosecutor would try to use this statute in a sexting case. (Southeast Booksellers v. McMaster, 371 F.Supp.2d 773 (D. S.C. 2004).)
Minors younger than 18 fall under the jurisdiction of South Carolina's juvenile justice system. Juvenile courts generally have more flexibility and discretion than adult courts when ordering a sentence (called a disposition in juvenile court). Most juveniles will be heard in juvenile court, but some could end up in adult court.
South Carolina offers the option of diversion—called the Youth Mentor Program—for any minor charged with a nonviolent offense in juvenile court. (All of the crimes listed in this article are considered nonviolent offenses, except sexual exploitation of minors in the second degree.)
When a child is charged with, or adjudicated delinquent for, a nonviolent offense, the judge can assign a mentor for the child as part of a diversion program. The mentor monitors the child's academic and personal development for six to 12 months. If the child successfully completes the program, the judge will either dismiss the charges or the disposition (sentence).
In certain cases, a juvenile can be transferred to adult court and receive an adult sentence. In South Carolina, transfer eligibility is based on a few factors, starting with the juvenile's age and the offense level. For purposes of this article, the following juveniles can be transferred:
If the juvenile falls in these categories, it's up to the judge to decide if it's in the best interest of the juvenile and public safety to hear the case in juvenile or adult court.
(S.C. Code Ann. §§ 63-19-20, -1210, -1430 (2021).)
South Carolina requires both juveniles adjudicated delinquent and adults convicted of "sex offenses" to register as sex offenders. Sex offenses include all of the crimes listed above (prohibiting obscenity, child exploitation, and child pornography). In South Carolina, sex offender registration can follow someone for life. (S.C. Code Ann. § 23-3-430 (2020).)
Any charges that stem from teen sexting can result in very serious consequences for those directly involved, and even perhaps for the teen's parents or guardians (who may be charged under South Carolina's child enticement or endangerment laws for allowing the teen's involvement in illegal sexual activities). If you've been questioned by the police or charged with a sexting crime, speak with an experienced criminal defense lawyer immediately. An attorney can help you navigate the juvenile or criminal justice system, protect your rights, raise defenses, and understand the consequences of an adjudication or a conviction.