With the rise of cell phone use, especially among teenagers, the practice of “sexting”—sending nude or sexually suggestive photos by text message—has also become common.
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 such photos to an under-age 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.
Texas punishes teen sexting under its law against electronically transmitting sexual depictions of children. Under this law, it is illegal for one minor to electronically send an image of someone younger than 18 years old to another minor; this includes images of the sender, recipient, or another underage person.
However, minors have a defense to prosecution when the images are solely of the sender or recipient, were sent within a dating relationship, and both parties are not more than two years apart in age (including if one party is 18 or older).
Images sent to harass or bully the recipient may incur additional penalties for the sender. (Tx. Stat. & Code Ann. § 43.261.)
Adults who sext with minors may 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, described below. (Tx. Stat. & Code Ann. § 43.24, -25, & -26.)
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.)
It is a Class C misdemeanor for minors to send or receive sexts from other minors. Penalties may include a fine of up to $500. Penalties may increase for second and subsequent convictions or if the crime was part of cyberbullying or other harassment.
However, a minor who receives sexts as part of cyberbullying or other forms of harassment will be unlikely to be charged with (or convicted of) a crime. 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 several state laws mentioned above, depending on whether the adult sent, received, or solicited the sexts; and penalties increase if the adult distributed those images to others as child pornography. Penalties may include a fine of up to $10,000, up to 20 years in prison, or both.
An adult punished for an offense involving sexting with a minor may be required, in addition to the fines and prison term described above, to register as a sex offender. And although it is less probable that a juvenile will have to register as a sex offender, it is a possibility that you should discuss with your attorney (described below).
Any charges that stem from teen sexting can result in some very serious consequences for the teen, the people who shared photos with the teen, and potentially for the teen's parents or guardians (who may be charged under Texas’ 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 local attorney will be able to provide you with legal advice, information about the courts and judges in your area, and the potential consequences of the charges against you, including whether juvenile defendants may be required to register as sex offenders.