Developing at a rapid rate, smart device technology presents amazing opportunities as well as difficult challenges. One such challenge is the exchange of sensitive and explicit material. "Sexting" is 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.
States have taken various approaches to address teen sexting. Some have enacted laws prohibiting sexting between minors. These laws tend to have penalties that aren't as severe as when an adult sexts with a minor. Others punish sexting under preexisting laws against child enticement and child pornography. Additionally, some states are addressing cyberbullying and harassment in sexting laws—by imposing tougher penalties if the sender sends an image intending to harass, threaten, or intimidate another.
Texas is one of the states that has enacted legislation specifically addressing teen sexting. The law offers prosecutors a charging option that allows minors to avoid a felony record and sex offender registration.
Crimes. Texas punishes sexting between minors under its law against electronically transmitting sexual depictions of children. Under this law, it's illegal for one minor to electronically send to another minor an image (often a photo) of someone younger than 18 engaging in sexual conduct. It's also illegal for a minor to possess an electronic image of another minor engaging in sexual conduct.
Defenses. The law provides a defense for a minor who receives an unsolicited sext if the minor destroys the image within a reasonable amount of time. Depending on the circumstances, minors in a dating or marital relationship who privately share their images (only with each other) might also have a defense from prosecution.
Penalties. Penalties for sexting between minors range from a class C to a class A misdemeanor in Texas. A class C misdemeanor carries up to a $500 fine, while a class A misdemeanor can be punished by a year's jail time and a $4,000 fine. The severity of the penalty increases for repeat convictions or if harassment or bullying was involved. Additionally, the court might require the offender to complete an education program on the dangers of sexting.
(Tex. Penal Code § 43.261 (2019); Tex. Crim. Proc. Code arts. 6.09, 42.12, 45.061 (2019); Tex. Fam. Code §§ 54.0404, 58.003, 59.004 (2019).)
In Texas, it's also possible for a person who sexts with a minor to be prosecuted for distributing sexual images to a minor, possessing or distributing child pornography, or promoting sexual performance by a minor. These crimes are usually punished as felonies and can carry severe penalties, including sex offender registration. (Tex. Penal Code §§ 12.32, 43.24, -.25, -.26 (2019); Tex. Crim. Proc. Code art. 62.001 (2019).)
Texas law also makes it illegal for anyone to send unwanted sexts, regardless of the age of the sender or recipient. The law includes sending images of people engaged in sexual conduct or with exposed intimate parts. The sext is unwanted according to the law if a recipient didn't request it or clearly give consent for it to be sent. This crime is a Class C misdemeanor and can be punished by a $500 fine. (Tex. Penal Code § 21.19 (2019).)
Any charges that stem from sexting involving minors or teens can result in very serious consequences for those involved. If you've been questioned by the police or charged with a sexting crime, you should speak to an experienced criminal defense lawyer immediately. An experienced attorney will be able to provide you with legal advice and information on the potential consequences of the charges against you. A knowledgeable lawyer can also explain issues like whether a juvenile defendants could be required to register as a sex offender.