As mobile devices continue to gain popularity, so do activities associated with them. Sexting which is the sharing of sexually explicit content via text messages has become prevalent in the United States. This has caused many states to legislate around this issue. According to a Statista report as of November 2016, 25 states had sexting laws. Sexting is more prevalent among teenagers, and according to this survey, 40 percent of teenagers have sent sexually explicit content.
According to this report, more girls send sexually explicit content than boys. Most girls say they engage in sexting as a joke. Some feel pressured by their peers to engage in sexting; while others engage in it because it makes them feel sexy.
Boys receive more explicit content from girls and more than half of them forward them to others.,
About 15% of teens admit to sending nude pictures to people online who they have never met.
Is Sexting Unlawful?
Sexting between two consenting adults is not prohibited by law. However, sending or receiving sexually explicit content to a person under 18 years is unlawful and in some instances considered child pornography or sexual exploitation and attracts criminal charges.
In the recent past, there have been highly publicized cases including that of Anthony Weiner the 2013 New York Mayoral candidate. An adult who either sends or receives sexually explicit content from someone under the age of 18 should be prosecuted under federal law. This can result in hefty fines and incarceration.
Why do some people engage in sexting?
There are many reasons why people engage in sexting. For most people, it’s just digital flirting, but in some cases, it’s blackmail which is more serious. It can also be a form of victimization when people are having conflict in their relationship or during a break-up. Some examples include;
- As an act of revenge or anger: In this instance, one person in the relationship gets angered or hurt by the other. They then retaliate by sharing intimate photos or texts shared between them with other people. The main aim is to embarrass the other person as well as injure their reputation and cause emotional hurt. When a person distributes intimate content of another person without their consent, they not only violate their trust, but depending on the age of the person whose intimate content is being shared it can be considered illegal.
- Sextortion: This is a form of extortion that occurs when someone threatens to release sexually explicit content if their demands are not met. The person being threatened may fall prey to the extortion for fear of suffering embarrassment and their reputation being tainted.
- Coercion: This is a form of sexual harassment and occurs when one pressures the other party to share sexually explicit content of themselves.
Why are states enacting sexting laws?
Sexting is a relatively new phenomenon and this is the reason why a majority of states have not enacted sexting laws. However, with the increased attention towards sexting more states are adopting sexting laws. In states that have not legislated on sexting, it is punished under pre-existing child pornography laws.
Whether sexting should be charged as child pornography is an issue that should be addressed not only at the federal level but also at the state level. There are cases where teenagers engaged in sexting have been charged with child pornography under state law. There are those who have been opposed to this arguing that it is an over-zealous approach to criminal prosecution, but proponents argue that sharing of sexual content among teenagers should be charged as child pornography. However, sometimes how these cases are handled is left to the discretion of prosecutors.
States that have adopted sexting laws have targeted images sent between or shared among teenagers with ages of the sender and recipient being clearly stipulated.
Sending, Receiving and Keeping
Sexting laws prohibit you from sending and receiving sexually explicit content. However, you can’t really prevent someone from sending you a text or photo. Due to this, sexting laws typically prohibit you from keeping this explicit content after receiving it. A person who has received sexually explicit content doesn’t violate the law until he chooses to keep the content. If the teen tries to delete this content, but for some reason, he is unable to, he may be able to avoid a sexting conviction.
Child Pornography Law
In states that have not enacted sexting laws; creating, possessing and distributing explicit photos of a minor will have you charged with child pornography or related crimes such as sexual exploitation of a minor. You will be charged with child pornography for sending explicit images if a minor. But it is not only adults who send and receive such content who can be charged with child pornography; teens who send explicit or nude pictures can also be charged with child pornography.
Penalties for a Sexting Charge
In most states, sexting is a felony. However, penalties will differ depending on whether the person is a minor or adult.
Jail Term: An adult prosecuted for child pornography can be sentenced to five years or more depending on the facts of the case.
Fines: Depending on the state a fine of $5000 or more depending on the nature of the content sent to the minor.
Sex offender registry: Adults and juveniles convicted of sexting and other sex crimes are required to register themselves with the state’s sex offender registry.
Warning: A judge can give the juvenile a verbal warning; if the minor engages in the same behavior again he can be charged in a juvenile court.
Fines: Fines differ from state to state and more severe in some states.
Probation: A juvenile may be assigned a probation officer who they are required to report to on a daily basis.
Counseling: The court may order the juvenile to attend counseling sessions.
What are your defenses for a sexting charge?
Consent is the best defense for a texting charge. If both parties consented to the texts, videos or any other content the court may charge them with a misdemeanor and not a felony. However, if one of the parties is a minor; consent as a defense may not apply.
Felony charges will remain for adults and teens who engage in sexting without the other party’s consent. There are a number of legislators who want the felony charges dropped for teens in some states and teens sexting consensually to only be charged with a misdemeanor. You should, however, consult your attorney and local authority for your jurisdiction’s sexting laws and available defenses.
When does sexting by adults result in criminal charges?
There are states that have enacted laws that address sexting between minors. Though the sharing of sexual content between adults is generally not illegal, this does not give leeway for adults to freely engage in sexting.
Child Pornography and Child Enticement
Any adult who receives and shares sexual images of a minor can be arraigned on a charge of possessing and sending child pornography. Though in some states there are defenses for teens up to 19 years charged with the same; these defenses cannot be used by adults.
In many states, it is a crime to ask a minor to share nude photos of themselves. It is sometimes referred to as child enticement. Though there are many instances when children pose as adults especially on online chats adults have been arrested and convicted of sex crimes for engaging in such activity with minors.
Disseminating Obscene material to Children
In many states, it is illegal to share obscene material or anything that is sexual in nature with minors. Any adult who sends sexually explicit content to a minor can be convicted of a sex crime. For instance, if a teacher sends nude photos of himself to students, he can be charged with disseminating obscenity.
There are instances when people who were in a relationship breakup and one of the party chooses to engage in revenge porn. Any adult who sends unwelcome sexts to another or shares sexually explicit content of another adult without their permission they can be charged with harassment or sued for causing emotional distress to another.
What is the punishment?
Child pornography laws are quite harsh, and you may be imprisoned for years for each image. In most states, if you are charged with child pornography, you are also required by the law to register as a sex offender. As a sex offender, your personal information may be shared with the public. Failing to register as a sex offender is also a crime. Depending on the state you live in as a sex offender you may be banned from certain jobs.
If you are charged with child enticement, the prison sentence can be quite harsh, and a conviction will also have you registered as a sex offender.
If the judge charges with obscenity and harassment; in some states, you will be charged with a misdemeanor which is punishable by a one-year jail term in most states. In other states, it is a felony punishable by a minimum sentence of one year in state prison. If you are charged with obscenity requirements to register as a sex offender will vary from state to state.
How do you protect your children as a parent?
It is important to note that kids model your behavior. If you sext or if their older siblings do it they will think that sexting is normal. Since children are beginning to use cell phones and other gadgets at a very young age; it is your responsibility as a parent to explain what sexting is in an age-appropriate language. Let them know that the photos they send may land in the hands of a malicious person. They should also know that it is not right to be blackmailed or manipulated because of photos that they have shared.
There are many cases where sexting has resulted to abuse and can also damage a teenager’s reputation as well as their social life. As a parent, you should also inform your child of the legal consequences associated with texting.
Generally, as a parent, you are not liable if your child chooses to engage in sexting. However, if there is evidence of negligence or child neglect you may be held liable. This often happens when a parent knows that their child is in a vulnerable situation and yet they choose not to report or take measures to prevent the wrong doing.
If your child is involved in sexting, you should determine whether it’s a legal issue. If it is you should contact a lawyer who is experienced in handling sex crimes. Even as a parent you should be careful not to view and share the sexual content since you can be charged with possessing child pornography.
Every parent should take measures to prevent their child from engaging in sexting. This may include restricting access to mobile devices as well as the internet. Your child should also be able to confide in you.
You can take measures such as;
- Blocking all calls except those made to loved ones.
- Limiting time on calls and on the internet.
It is also important that you know all the features on your child’s phone. Take an active interest in your child’s life. When your children become teenagers, it may be hard to control them; it is, therefore, important that you set very clear rules and if they are broken you should follow through with punishment.
Do you need an attorney?
Sexting charges can be quite harsh, not only for the people who have shared the sexually explicit content but also for parents. If you have been caught with sexually explicit content or have been charged with sexting, it is important that you seek the services of an experiences sex crimes attorney.
At Sex Crimes Attorney we are experienced in handling sexting cases. We will employ our legal expertise and resources to win your case and defend your rights or those of your child.
We are cognizant of the fact that sexting and child pornography are serious charges that can affect your future or that of your child. We will, therefore, develop a winning strategy after taking into consideration all the facts of your case. You can call us on 888-666-8480 to book an appointment so that we can build a sound legal case.