With the rise of cell phone use, especially among teenagers, the practice of “sexting”—sending nude or sexually suggestive photos by text message—has become common.
Some states have enacted laws against sexting 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 more on child pornography and 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.
Tennessee punishes teen sexting in part under its law against sexual exploitation of children. Under this law, it is illegal to possess images of a minor engaged in sexual activity. Originally enacted to criminalize child pornography, this law also pertains to sexual images sent via text message, and it applies to anyone--an adult or minor--who sexts with someone younger than 18. However, as described below, age is relevant for sentencing purposes. (Tn. Code Ann. § 39-17-1003.)
Someone who sexts with a minor may also be prosecuted for distributing or making sexual images available to a minor, or producing, exchanging, possessing, or distributing child pornography. (Tn. Code Ann. § 39-17-902, -911, -1004, -1005.)
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.)
Sexual exploitation is a Class D felony, and penalties for a convicted adult may include a fine of up to $5,000, at least two (and up to 12) years in prison, or both. Sexting with a minor may also be charged under one of the other laws mentioned above. Penalties are stiffer if the defendant distributed the images to others as child pornography. Penalties may include a fine of up to $25,000, up to 30 years in prison, or both.
A minor found to have committed one or more of these offenses will likely face different penalties than those just described because minors are tried in juvenile court, where the judge has wider discretion in sentencing. For more information on the treatment of juveniles who commit crimes, see Incorrigibility: Juvenile Laws.
Likewise, a minor who receives sexts as part of cyberbullying or other forms of harassment probably won't be charged with (or convicted of) a crime. For more information on cyberbullying and computer crimes in general, see Computer and Internet Crime Laws.
Any charges that stem from teen sexting can result in very serious consequences for the teen, the people who shared photos with ore received photos from the teen, and potentially teen's parents or guardians (who may be charged under Tennessee’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 local criminal defense lawyer immediately. Only an experienced attorney can provide you with proper legal advice about your case.