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Sexting and the Law

“Sexting" often refers to transmitting nude photos or suggestive sexual images via text message. Such transmission can be textual or image-based, typically via cell phones, smartphones, computers, and more. In the modern age of social media, people might consider it harmless or even consensual, but it can sometimes cause legal issues. When minors get involved, it can lead to potential criminal charges or sex crimes.

Adolescent Sexting in the Digital Age

The emergence of sexting started due to the growth of digital technology. Studies have established that teen sexting happens frequently and is becoming a rising phenomenon. This is often tied to teenagers' rising ownership of smartphones and other electronic devices. The prevalence of sexting charges may also be traced to the prevalence of sexually explicit photos on social media platforms.

In the United States, sexting laws vary widely among the states. Some states have decriminalized this conduct, while in others it is considered a misdemeanor or felony charge. Some states classify the act as sexual exploitation or child pornography. This applies in particular when the act involves minors. When this occurs, state and federal laws can impose severe sentences.

Legal Implications of Sexting Between Minors

Some state laws criminalize teen sexting. Regardless of how the laws may vary, states closely monitor the federal laws that address child pornography cases. These laws first took effect in 1977. Smartphones, however, did not become prevalently used until around 2010. Federal laws address sexting specifically, other than the laws regarding possessing sexual content on computers.

Free Speech Protection and Sexting

Some states offer free speech protection to sexting under their state constitutions. So far, 27 states address sexting. For instance, Maine and New Mexico exempted teen sexting from child pornography law under certain cases. The state statute in Maine does not prohibit possession of sexually explicit images under the following circumstances: the person in the image is at least 14 to 15 years old, and the possessor of the images is less than five years older.

In New Mexico, child pornography laws do not apply to the sexting of sexually explicit images between teens ages 14 to 18. However, the underage minor in the image should know or voluntarily consent to possessing the images with sexually explicit depictions. If the pictures involved a 13-year-old or, if pictures of a 14-year-old child or older were sent to a 19-year-old, the participants could be charged with child pornography.

Diversionary Programs

In New York and New Jersey, state constitutions also allowed leniency as they allowed diversionary programs for prosecution. This is a lighter sentence than the full penalty under child pornography laws. These programs involve educating underage minors on the charged act. This includes discussing the legal and nonlegal consequences of sharing sexually explicit images.

Affirmative Defenses to Sexting

In Nebraska and Indiana, the state added affirmative defenses to child pornography laws. For instance, in Nebraska, an explicit image showing only the defendant can be considered as the first affirmative defense. If the minor depicted knowingly or voluntarily permits the production of the explicit image without coercion and there's no distribution, it can serve as a second defense.

Misdemeanor Offenses and the “Romeo and Juliet" Clause

Nineteen states constitute sexting as a separate misdemeanor offense, and the laws often have the “Romeo and Juliet" clause. For example, in Texas, this defense may apply if minors involved are within a two-year age gap and are in a “dating relationship." These factors may act as an affirmative defense to the misdemeanor.

In 2019, the American Academy of Pediatrics published a more detailed article about Sexting and state laws.

Minors Arrested for Sexting

There were instances where authorities arrested teenagers for possessing nude images of themselves. These instances occurred in New Jersey, North Carolina, and Pennsylvania.

In 2015, North Carolina arrested a 17-year-old high school student for sexting. The state charged the teenager with four counts of possessing explicit images of himself on his phone. In addition, the teenager was also charged for possessing an explicit image of his 16-year-old girlfriend. That image was consensually forwarded to him and not shared with other persons. The girlfriend who shared the explicit image was likewise charged with having nude images of herself on her mobile device.

A Call for Reform

While this case sparked a widespread call for reform which resulted in legislation of laws related to consensual sexting among minors, sexting laws generally prohibit forwarding of explicit images of a minor. If a teenager forwards nude images of their girlfriend to others, both they and the recipients could be prosecuted. The charge could be the dissemination of and possession of child pornography. Similarly, federal laws make it illegal to entice minors to participate in sexually explicit activities.

School Policies on Sexting

Note that schools may also punish their students for sexting. This applies even if no state laws prohibit it and all the students involved are legal adults. It was held, in the 1969 case of Tinker v. Des Moines, that school authorities may punish students for activities that disrupt school function. If sexting leads to distractions, bullying, or an outbreak of harmful acts, the school officials may punish the offenders.

State Penalties

Some of the penalties that the state law may impose on a minor charged with sexting are as follows:

  • Fine
  • Warning
  • Community service or counseling
  • Probation
  • Detention

Note that these laws may also vary in every state. In some cases, the “Romeo and Juliet" provision could reduce or eliminate the charge.

Legal Implications of Sexting Between Minor and Adult

Although no laws prohibit sending sexually explicit content between consenting adults, sending the same to minors may violate laws. In one case, the state of Georgia charged a 32-year-old man who was sexting an eleven-year-old girl. He was charged with obscene phone contact with a child and distributing obscene materials to a minor. In Illinois, sending explicit images to a minor constitutes a misdemeanor offense.

The following are some of the penalties imposed on adults sexting with a minor:

  • Fines
  • Incarceration
  • Probation
  • Registration in the sex offender registry

Contact a Criminal Defense Lawyer

Navigating the ever-changing law enforcement surrounding sexting can be overwhelming and confusing. A single mistake could lead to severe consequences, from facing fines to ending up on the list of public sex offenders. Whether you are a minor or an adult, it is essential to know your rights.

If you have concerns related to sexting crimes or are facing child pornography charges, it is best to consult with a criminal defense attorney. They can give you legal advice particularly tailored to your case. A criminal defense lawyer can also help you better understand criminal laws that guide this state or federal crime.

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