Sexting is the sharing of nude or sexually suggestive photos by electronic means, whether through texting, messaging, emailing, or posting on social media sites. The word sexting is a portmanteau word, a combination of the words “sex” and “text.” With the rise in the use of smart devices, sexting has become a phenomenon among both adults and teens.
One study estimated that as many as one in three teens had received or sent lewd photos. Later surveys have found incidents of teen sexting to be much (less than 10%), but obviously it's hard to determine the exact prevalence of sexting among teens or adults. Among teens, a common scenario is for one child to send a nude or suggestive photo to his or her boyfriend, girlfriend, or a romantic interest. These photos might then be further disseminated among kids, and some photos have even ended up published online. There have also been cases of teens taking and sharing photos of others without their consent.
While the private, consensual, and non-commercial sharing of explicit photos between adults is not necessarily illegal, the sharing of images among teenagers is almost always a crime. Nude and suggestive images of children under the age of 18 are considered child pornography and punished accordingly, even when the people taking and sharing the photos are children themselves.
Prosecutions. Because child pornography laws were originally enacted to protect children from sexual predators and commercial pornographers, some people argue that they should not be used against children. For example, a 14-year-old girl in New Jersey was charged with possessing and distributing child pornography after she posted nude photos of herself on a social media website to get her boyfriend’s attention. Several 18-year-old boys have been prosecuted for possessing or sharing photos of their underage (16-year-old) girlfriends, even when the girls willingly took and sent them the photos. Older adults who solicit and share nude photos with kids have also been charged with child pornography, child enticement, and disseminating obscenity.
Penalties. Depending on the state laws invoked, teen sexting can result in serious penalties. In most states, child pornography offenses are felonies, punishable by long terms in state prison and mandatory sex offender registration. In most cases that have received media attention, teens have not been sentenced to prison, jail, or juvenile facility. For example, the New Jersey girl (mentioned above) received probation and counseling. The most common penalty is probation, with a requirement that the child attend counseling or an educational program. But some teens have been ordered to register as sex offenders.
Over the past few years, several states have enacted laws targeting teen sexting. Generally, these laws give children who engage in sexting a break so that they are not convicted and punished for serious sex offenses. Some states have enacted teen sexting defenses to child pornography laws; others have made sexting a separate, less serious offense; and some have established diversion programs to pull kids out of the criminal justice system and into educational programs. More states are expected to enact similar legislation in the next few years.
Sexting has other consequences, even if no criminal charges are filed, especially for kids. Schools have disciplined and suspended students involved in taking and sharing sexts. Images can easily be forwarded and shared, and even posted online. A person’s reputation can be damaged, and this can make it difficult to talk advantage of educational or job opportunities. Teens whose private images are shared are often humiliated and some are bullied. In several cases, students whose photos have been distributed have committed suicide.
If you or your child is charged with a crime as a result of sexting, you should talk to a local criminal defense attorney. An attorney can explain the laws in your state and how the case is likely to fare in court. An experienced criminal defense attorney can provide you with appropriate legal advice and inform you of the potential consequences, including whether juvenile defendants may be required to register as sex offenders, and whether there are alternatives to formal adult court, such as handling the matter in the juvenile court system. Talking to a lawyer is the best way to protect your rights.