“Sexting” involves 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, which can have harsh penalties for both adults and minors.
Unlike states with specific teen sexting laws, Wisconsin punishes teen sexting under its laws on child pornography, sexual exploitation of a child, and causing harm to a child—all of which are felony offenses.
These laws prohibit creating, distributing, and possessing visual depictions of a child (younger than 18) engaged in “sexually explicit conduct.” Sexually explicit conduct includes actual or simulated sexual intercourse, masturbation, or lewd exhibition of (less than fully covered) intimate parts. (Wis. Stat. § 948.01 (2020).)
Under Wisconsin’s law prohibiting sexual exploitation of a child, it is illegal to create, distribute, or possess with intent to distribute any visual depiction of a child engaged in sexually explicit conduct. This includes sexting images of minors under 18, regardless of whether the creator or sender is an adult or a minor.
Examples. Say an 18-year-old girl takes topless photos of her 16-year-old friend, so the 16-year-old can send them to her boyfriend. The 18-year-old has committed a felony for sexual exploitation of a child (by creating the sexually explicit images). If the 16-year-old sexts the topless photos to her boyfriend, she has committed a crime for distributing (sharing) sexually explicit images of a minor (herself). (The law doesn’t provide an exception for creating or sharing selfies.) Finally, if the boyfriend downloads the topless photos intending to share them with his friends, he, too, could face felony charges for possession with intent to distribute the photos.
Penalties. The penalties for sexual exploitation of a child depend on whether an adult or minor (younger than 18) committed the act. Penalties are less severe for acts committed by a minor. A minor who violates this section faces a Class F felony, punishable by up to 12.5 years in prison and a $25,000 fine. An adult who violates this section faces a Class C felony, punishable by five to 40 years in prison and a fine up to $100,000. (If the age difference between the adult and child involved is less than four years, the court isn’t required to impose the minimum five-year sentence.) A parent or guardian who knowingly permits a child to take or send sexually explicit images also commits a Class C felony.
(Wis. Stat. §§ 939.50, 939.617, 948.05 (2020).)
Under Wisconsin’s child pornography law, an adult or minor who knowingly possesses or views a visual depiction of a child engaged in sexually explicit conduct—including sexual or lewd depictions sent via text message—can face felony charges.
Penalties. An adult who possesses a sexually explicit image of a child commits a Class D felony, which carries a penalty of three to 25 years’ imprisonment and a $100,000 fine. (If the age difference between the adult and child involved was less than four years, the court doesn’t have to impose the minimum three-year sentence.) The penalty for a minor who possesses such an image (presumably including a selfie) faces Class I felony charges, punishable by incarceration up to three and a half years and a $10,000 fine.
(Wis. Stat. Ann. §§ 939.50, 939.617, 948.12 (2020).)
Finally, it’s a crime for anyone to intentionally cause a child to view an image depicting sexually explicit conduct, if done for the purpose of sexually arousing the actor or humiliating the child. Unlike the above two crimes, this felony applies to sexually explicit images of adults or minors. So a 19-year-old adult who sexts a nude selfie to a 16-year-old commits a felony.
Penalties. If the child who views the image is 13 or older, the defendant faces Class H felony charges. The penalty increases to a Class F felony if the child viewing the image is younger than 13. The maximum penalty for a Class H felony is up to six years in prison and a $10,000 fine. For a Class F felony, the maximum penalty is a 12.5-year prison sentence and a $25,000 fine.
(Wis. Stat. §§ 939.50, 948.055 (2020).)
Wisconsin is one of only a few states that consider 17-year-olds to be adults for purposes of criminal prosecution. With some exceptions, juveniles age 10 to 16 fall under the jurisdiction of the juvenile court. Wisconsin treats teenagers age 17 to 19 as adults.
In juvenile court, judges generally have more discretion and sentencing options than in adult court. A juvenile court judge can order a minor (age 10 to 16) to attend counseling, participate in a community service or work program, or take part in an educational program designed to deter future delinquent behavior. A minor who is found guilty will receive an adjudication of delinquency rather than a conviction. If a minor is ordered to serve time in detention, the time served would be in a juvenile facility, not an adult prison.
Teenagers age 17 to 19 fall under the jurisdiction of adult court and face adult penalties, such as prison time. Wisconsin law also allows teenagers age 15 and 16 who are facing felony charges to be transferred from juvenile court to adult court. In this situation, the prosecutor would typically petition the court for the transfer, and the court determines whether it’s in the best interests of the juvenile and the public to try the juvenile in adult court. Juveniles tried as adults receive adult penalties.
(Wis. Stat. §§ 938.02, 938.18 (2020).)
Adults (17 and older) and juveniles tried as adults must register as sex offenders if convicted of any of the above crimes. For minors adjudicated in juvenile court, the court may order the minor to register as a sex offender if it determines the minor’s conduct was sexually motivated and it’s in the interests of public safety. (Wis. Stat. §§ 301.45, 938.34 (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, you need to speak to an experienced local criminal defense lawyer immediately. 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. Be sure to ask your attorney about any future consequences of having a sex crime on your record. Criminal records can make it more difficult to get a job, housing, or public benefits down the road.