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, Virginia punishes teen sexting under its laws against child pornography.
Virginia’s law against possession and distribution of child pornography covers creating, sending, possessing, and resending sexually explicit images of juveniles (people under the age of 18) via text message. The law makes no distinction between adults and juveniles who make, send, receive, or possess such images. (Penalties for teens will differ, however, because teens are tried in juvenile court (see below).) (Va. Code Ann. § 18.2-374.1:1.)
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.)
Creating, sending, possessing, and distributing sexual images of a juvenile is a class 6 felony, and carries a minimum prison sentence of five years, with a maximum of 20. Second and subsequent violations may incur longer prison terms.
While sexting between juveniles may technically constitute a child pornography offense, the crime will usually be dealt with through the juvenile justice system, not the adult criminal system. Juvenile courts have wider discretion in the kinds of penalties they impose, even when a juvenile is charged with a serious offense.
For more information on the treatment of juveniles who commit crimes, see Incorrigibility: Juvenile Laws.
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 Virginia’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.