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 (usually photos) 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 by or between minors. These laws tend to have penalties that aren't as severe as when an adult sexts with a minor. Other states punish sexting under preexisting laws against child enticement and child pornography.
Washington punishes sexting images of minors (those younger than 18) under its laws against sexual exploitation of children. The law creates different crimes for:
In Washington, it's illegal for a minor to sext sexually explicit images of another minor to anyone. The law creates two categories of crimes based on the age of the minor shown in the image.
The lowest offense level applies when a minor sexts a sexually explicit image of another minor age 13 or older. Misdemeanor penalties apply if the image shows the minor's genitals, pubic area, buttocks, or breasts. If the image depicts the minor in a sexual act, the penalty increases to a gross misdemeanor.
Minors convicted of either of these crimes don't have to register as a sex offender. This law also doesn't penalize minors for sending selfies or possessing sexually explicit images of minors age 13 or older.
The law requires prosecutors to place first-time offenders of one of the above sexting crimes in diversion. Diversion provides an alternative to prosecution if the defendant successfully completes the terms of the agreement. A diversion agreement might require the defendant to attend counseling or treatment, perform community service, or pay restitution (to a victim or the community).
(Wash. Rev. Code §§ 9.68A.053, 13.40.080 (2019).)
More severe penalties apply when a minor sexts a sexually explicit image of another minor younger than 13. A minor also commits a crime by knowingly possessing a sexually explicit image of another minor younger than 13—regardless of whether the minor intends to share the image. These crimes are class B felonies. If the image depicts the minor in a sexual act, the crime is a first-degree offense; otherwise, it's a second-degree offense. Conviction of this offense can result in sex offender registration.
(Wash. Rev. Code §§ 9.68A.053, 9A.44.128, 9A.44.130, 9A.44.143 (2019).)
Look out for Legal Changes
Keep in mind that statutes, which define crimes and their penalties, can change, so checking them is a good idea. How courts interpret and apply the law can also change. These are just some of the reasons to consult a criminal defense attorney if you have any questions about sexting or have been accused of a crime.
The authorities usually handle offenses committed by minors through the juvenile justice system, not the adult criminal system. Juvenile courts have wider discretion in the types of penalties they can impose. Washington's Juvenile Court Act outlines a standard range of punishment for offenses committed by minors, as well as alternative sentencing options.
However, if the charges are for felony sexual exploitation of a child, it's possible for a minor age 15 or older to be transferred to adult court. In adult court, the minor faces adult penalties, including jail or prison time. Teenagers who are 18 or 19 always fall under the jurisdiction of adult court.
(Wash. Rev. Code §§ 13.40.070, 13.40.110, 13.40.160 (2019).)
Washington's laws against sexual exploitation of children also prohibit adults—including 18- and 19-year-olds—from sexting or possessing sexually explicit images of minors. (Possession is a crime here when someone knows they possess the image or intends to distribute it to anyone else.)
These crimes are classified by severity into first- and second-degree offenses, based on the conduct depicted in the image. (The classification applies regardless of the age of the minor shown in the image.) The crime is a first-degree offense when the image depicts a minor engaged in a sexual act. Second-degree penalties apply if the image shows a minor's genitals, pubic area, buttocks, or breasts.
An adult convicted of a first- or second-degree offense is guilty of a class B felony and faces the possibility of up to ten years in prison and sex offender registration. During sentencing, the judge takes into consideration the severity (or degree) of the offense. First-degree offenses generally receive harsher penalties than offenses in the second-degree.
(Wash. Rev. Code §§ 9A.20.021, 9.68A.050, 9.68A.070 (2019).)
An adult convicted of sexual exploitation of a minor can be required to register as a sex offender. Registration is in addition to any prison time or fine. And although it's less likely that a minor will have to register as a sex offender, it's still a possibility that should be discussed with an attorney.
(Wash. Rev. Code §§ 9.94A.030, 9A.44.128, 9A.44.130, 9A.44.143 (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.