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 pornography.
To learn more about sexting in general, see Teen Sexting. And for more on child pornography and enticement, see Child Enticement Laws and click the link to your state in the section entitled “Child Enticement Laws by State.” Also see Child Pornography Charges and Laws.
Unlike states with specific teen sexting laws, Wisconsin punishes teen sexting under its laws against child pornography and related activities.
Under Wisconsin’s child pornography law, it is illegal to possess or view a visual depiction of a child engaged in sexual conduct—including depictions sent via text message. (Wi. Stat. Ann. § 948.12.)
It is also a crime for an adult to cause a child to view sexual activity for the purpose of that adult’s sexual arousal or gratification. Under this law, an adult who sends a sexually explicit text message image to a child may face felony charges, as described below. (Wi. Stat. Ann. § 948.055.)
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.)
Teens who sext may face child pornography charges, which may be heard in juvenile court (rather than the adult criminal justice system), where judges have a wider discretion in the kinds of penalties they impose.
However, even in juvenile court a conviction for possessing or viewing child pornography may include a fine of up to $10,000, up to three years and six months in custody, or both.
For more information on the treatment of juveniles who commit crimes, see Incorrigibility: Juvenile Laws.
Adults who possess or view child pornography—including sext messages with sexual images of children— may face child pornography charges with penalties including a fine of up to $100,000, up to 20 years in prison, or both.
An adult who text s sexual images—regardless of the age of the people depicted in the image—to a child younger than 13 years old may face a fine of up to $25,000, up to 12 years and six months in prison, both. And when the recipient was 13 and older, but younger than 18, the adult will face a fine of up to $10,000 up to six years in prison, or both.
An adult punished under Wisconsin’s child pornography laws for having sexted 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 Wisconsin’s 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.