As cellphones become more and more common, the practice of “sexting”—sending nude or sexually suggestive photos by text message—has grown.
Some states have enacted laws against sexting that occurs between teenagers, with penalties that are less severe than those that would apply to an adult who sends illicit photos to an underage person. Other states punish sexting under pre-existing laws against child enticement and child pornography.
To learn more about sexting in general, see Teen Sexting.
For information on child pornography and child enticement, see Child Enticement Laws and click the link to your state in the section entitled “Child Enticement Laws by State.” Also see Child Pornography Charges and Laws.
South Carolina punishes teen sexting under its law against disseminating harmful material to minors. This law makes it a crime to send sexual images to minors via text message. The law applies to images that depict either minors or adults. (S.C. Cod. Laws Ann. § 16-15-385.)
Adults who sext with minors may be prosecuted under this law or South Carolina's laws against disseminating obscene material to a minor and sexual exploitation of a minor. (S.C. Cod. Laws Ann. § 16-15-345, -395, -450, -410.)
SEXTING AND FEDERAL LAW
Depending on the circumstances, sexting may also be a crime under federal law.
The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 makes it illegal to produce, distribute, receive, or possess with intent to distribute any obscene visual depiction of a minor engaged in sexually explicit conduct. Knowing possession of such material—without intent to distribute—is also a crime under the PROTECT Act. (18 U.S.C. § 1466A(a)(1).)
Federal law also criminalizes causing a minor to take part in sexually explicit conduct in order to visually depict that conduct. Parents who allow this behavior can also be prosecuted. (18 U.S.C. § 2251.)
It’s also a federal crime to use a computer to ship, transport, receive, distribute, or reproduce for distribution a depiction of a minor actually engaging in sexually explicit conduct, or any material that otherwise constitutes child pornography. It’s another federal crime to promote or solicit sexually explicit material involving a minor. (18 U.S.C. § § 2252, 2252A.)
But federal prosecution of juveniles for sexting may be unlikely. The Federal Juvenile Delinquency Act (FJDA) generally provides that, where possible, juveniles should be prosecuted in state—not federal—courts. (18 U.S.C. § 5032.)
Disseminating harmful material to minors is a felony, and may incur a fine, up to ten years in prison, or both. However, minors will likely be subject to different or reduced penalties when tried in juvenile court, where judges have wider discretion in sentencing.
For more information on the treatment of juveniles who commit crimes, see Incorrigibility: Juvenile Laws.
A minor who receives sexts as part of cyber-bullying or other forms of harassment probably won’t be charged with a crime, though the same can’t be said for the sender. For more information on cyber-bullying and computer crimes in general, see Computer and Internet Crime Laws.
An adult who sexts with a minor may be charged under one of the laws mentioned above, depending on whether the adult created, sent, received, or solicited the sexts. These crimes are also felonies. Again, penalties may include a fine as determined by the sentencing judge, up to 10 years in prison, or both. The prison term will likely increase if the adult distributed the images to others as child pornography.
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, you need to speak to an experienced criminal defense lawyer immediately. Only an attorney can provide you with proper legal advice about your case and protect your rights.