“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.
Virginia penalizes teen sexting under its laws prohibiting creating, distributing, and possessing child pornography—all of which are felony offenses and may require sex offender registration. Defendants who are younger than 18, though, can be tried in juvenile court and may face less severe consequences than adults. (See "Juvenile or Adult Court" below.)
Virginia’s child pornography laws prohibit creating, distributing, or possessing “sexually explicit visual material” of a minor (younger than 18). Sexually explicit visual material includes digital images or videos that depict sexual excitement, sexual conduct, or lewd exhibition of a person’s genitals, pubic area, or buttocks or a female’s breast.
The law makes no distinction between adults and minors who make, send, receive, or possess such images—they face the same felony charges. So a 16-year-old girl who sexts a nude selfie to her 18-year-old boyfriend could be charged with creating and distributing child pornography (of her own image). The boyfriend who received the sext could also face charges for possession of child pornography.
The penalties for child pornography depend on the act involved—possession, distribution (sharing), or creation of the image.
A person convicted of possessing child pornography commits a Class 6 felony, punishable by one to five years’ imprisonment and a fine up to $2,500. For a repeat violation, the penalty increases to a Class 5 felony and carries up to ten years in prison.
The next level in severity involves distributing or sharing child pornography, which is punishable by five to 20 years in prison.
A person who creates child pornography faces harsh felony penalties. Some offenses carry mandatory minimum prison terms that cannot be suspended.
Minor younger than 15. If the minor depicted in the image is younger than 15, the defendant faces a prison term of five to 30 years. In cases where the age difference between the depicted minor and defendant is seven years or more, the defendant faces a mandatory five-year prison sentence for a first offense and a mandatory 15-year prison sentence for repeat offenses.
Minor age 15 to 17. A defendant who creates a sexually explicit image of a minor who is at least 15 but younger than 18 faces one to 20 years’ imprisonment. But if the defendant is at least seven years older, the defendant faces a three-year minimum sentence for a first offense and a ten-year minimum sentence for a repeat offense.
(Va. Code Ann. §§ 18.2-374.1, 18.2-374.1:1; 18.2-390 (2020).)
An adult (18 or older) who is charged with child pornography will be tried in adult court. Minors (younger than 18) fall under the jurisdiction of the juvenile court, with some exceptions.
Juvenile court. In juvenile court, the judge typically has more discretion and sentencing options than in adult court. For example, a juvenile court may suspend a juvenile's driver’s license, require participation in a public service project, or send the juvenile to boot camp. If adjudicated (tried) in juvenile court, a minor who is found guilty receives an adjudication of delinquency rather than a conviction.
Juveniles tried in adult court. Virginia law allows certain minors to be transferred and tried in adult court; this includes minors age 14 or older charged with a felony. As noted above, all child pornography offenses are felonies. A juvenile who is tried as an adult faces adult penalties (such as prison time)
(Va. Code Ann. §§ 16.1-269.1, -271 (2020).)
Adults and juveniles tried as adults who are convicted of child pornography must register as sex offenders in Virginia. For juveniles older than 13 who go through juvenile court, the court decides if the juvenile should register as a sex offender. The court must consider the age and maturity of the juvenile offender and any relationship between the parties involved (the offender and minor depicted in the image). Juveniles age 13 and younger do not have to register.
(Va. Code Ann. §§ 9-901, -902 (2020).)
Any charges that stem from sexting images of minors carry serious consequences. If you’ve been questioned by the police or charged with a sexting crime, speak to an experienced local criminal defense lawyer immediately. An 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 a conviction or adjudication. Having a felony sex crime on your record can limit your ability to get a job, housing, or public benefits down the road.