Sexting is the sending and receiving of nude or sexually explicit images using electronic communications, such as texting, messaging, email, and social media. Consensual sexting by and between adults (of adult images) is generally legal, whereas sexting involving minors or images of minors is by and large prohibited.
More and more teenagers—many of whom are minors—are engaging in sexting. And many don't realize that the penalties for these actions can be harsh. Sexting can also lead to harassment and cyberbullying.
Some states have enacted laws that specifically address sexting by and between minors. Many of these laws have penalties that are less harsh than those that apply when adults sext sexually explicit images of or to minors. In states that do not have teen sexting laws, sexting often falls under preexisting laws prohibiting child pornography or sexual exploitation of children.
Tennessee enacted a teen sexting law in 2017 that provides prosecutors a charging option that is less severe than filing felony charges. The law, however, doesn't prevent a prosecutor from filing felony charges if the circumstances warrant.
Tennessee's teen sexting law applies only to sexting committed by minors (younger than 18).
Called "illegal use of a telecommunication device," the law prohibits a minor's use of a telecommunication device (such as cellphones, smartphones, and other digital devices) to send or possess a "sexually explicit image" of a minor. A sexually explicit image includes any lewd depiction of a minor's genitals, pubic area, breasts, or buttocks or a sexual depiction of nudity.
Selfies. The law applies to sexually explicit images of any minor, including a selfie taken by a minor.
Unsolicited sexts. The law states there's no violation if a minor receives an unsolicited sext and deletes it or reports it to a parent, guardian, school official, or law enforcement.
A violation of this section is considered an "unruly act." Unruly acts (sometimes called status offenses) are offenses that only apply to minors. (Other examples would be underage smoking or breaking curfew.) Any violation under this section would be heard in juvenile court. Juvenile court judges generally have a lot of flexibility when imposing sanctions on minors and can place the minor under the supervision of a probation officer or children's services, order the minor to undergo treatment (if necessary), or require a child to attend school.
(Tenn. Code Ann. §§ 1-3-105; 37-1-148 (2020).)
Tennessee also punishes sexting under its laws prohibiting sexual exploitation of children (child pornography) and exhibition of harmful material to minors. These offenses involve images of minors (including selfies) and apply to acts committed by adults or minors.
Tennessee's laws prohibiting sexual exploitation of children makes it illegal to possess, share, or create images of a minor (younger than 18) engaged in real or simulated "sexual activity." The definition of sexual activity includes sexual intercourse, masturbation, physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or breast as part of a sexual act, and the lewd showing of the genitals, buttocks, pubic areas, or female breast.
Originally enacted to criminalize child pornography, the language of the law pertains to sexual images sent or received via texting, messaging, or other electronic communication devices. The penalties vary depending on the act involved—whether the defendant possesses, shares, or creates the image.
Possession of images. For knowing possession, the penalties range from a class D to class B felony depending on the number of images possessed. (This section is referred to as "sexual exploitation of a minor.")
Dissemination of images. Sharing images can result in a class C or B felony depending on the number of images involved. (This section is referred to as "aggravated sexual exploitation of a minor.")
Creation of images. A person who creates an image that includes a minor engaging in sexual activity commits a class B felony. (This section is referred to as "especially aggravated sexual exploitation of a minor.")
The following are the minimum and maximum sentences for each class of felony. Generally, a first-time offender would receive a lower sentence within the sentencing range compared to what a repeat offender would receive.
A judge can defer (or suspend) proceedings against certain defendants charged with sexual exploitation of a minor (including aggravated and especially aggravated charges) who have never been convicted before of a Class A misdemeanor or a felony. While proceedings are suspended (often called diversion), the defendant must attend counseling or treatment and pay supervision costs (based on ability to pay). A defendant who successfully completes diversion will have the proceedings discharged and can ask the court to expunge (or seal) related public records. A person can only enter diversion once.
(Tenn. Code Ann. § 39-17-1002, 1003, -1004, -1005; 40-35-313 (2020).)
Someone who sexts with a minor could also be prosecuted for distributing or exhibiting harmful materials (sexual images) to a minor. This crime is a class A misdemeanor, punishable by up to 11 months and 29 days in jail and a $2,500 fine.
(Tenn. Code Ann. § 39-17-911 (2020).)
Most sexting cases involving a minor (younger than 18) as a defendant will be heard in juvenile court. Juvenile judges have more flexibility and discretion in sentencing than adult court judges. And the juvenile will have an adjudication on their record (not a conviction).
In Tennessee, the juvenile court hears all cases involving unruly acts by minors. So, if a prosecutor charges a minor under the teen sexting law (illegal use of a telecommunication device), the case goes to juvenile court. Even if the prosecutor filed felony sexual exploitation charges against a minor, most of these cases would still be heard in juvenile court.
Tennessee allows transfers of juveniles to adult court, but for the charges applicable here, discretionary transfer to adult court would only apply to minors who are 17. If the judge decides to transfer a minor to adult court, the minor faces adult penalties, including prison time and sex offender registration.
(Tenn. Code Ann. §§ 37-1-103, -134 (2020).)
Adults (and minors tried as adults) who are convicted of any level of sexual exploitation of a minor must register as a sex offender in Tennessee. A minor who receives an adjudication (rather than a conviction) in juvenile court does not have to register. (Tenn. Code Ann. §§ 40-39-202, -203 (2020).)
Any charges that stem from teen sexting can result in very serious consequences. If you've been questioned by the police or charged with a sexting crime, speak to an experienced local criminal defense lawyer immediately. An experienced attorney can provide you with proper legal advice about your case, evaluate and raise defenses, and help you navigate the justice system. The consequences of any conviction, but especially a sex crime, can have long-lasting effects on your ability to get a job, housing, or loan in the future. Be sure to speak with your attorney about the immediate and future consequences of any plea deal or negotiation.