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Is Sexting Illegal?

SUREN on February 17, 2021

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Sexting is the communication of sexually explicit material through online media.   While sexting between consenting adults is neither a social evil (in most countries) nor a legal crime, when the act involves underage individuals,  it becomes murky waters, both from the ethical viewpoint and legal. Much as we like to believe that our own children are insulated from sexting, they may not be and it is important to understand the ethical and legal consequences of sexting.  What constitutes sexting? Does it have to go as far as exchanging nudes?  Is flirting considered sexting?  Is sexting illegal where you live?  Here are some answers to some common questions.

What is Sexting?

While there is no consensus on what exactly is sexting, it is  generally considered the act of digitally sending or sharing sexually explicit images and/or texts. These can be images of nudes/semi-nudes or simply texts of sexual nature.  Flirting falls into that blurry territory and could be construed as sexting, if it crosses certain limits.  Sexting can occur through text message, emails, Instagram DMs, Snapchat selfies, blog comments and even TikTok messages. Many people do not know the difference between flirting and sexting, and what they may consider as innocent flirting may, in fact, be sexting in that particular state/country and when directed at an un-consenting or underage individual, could lead to criminal prosecution. 

Teen sexting

Is Sexting Illegal?

Sexting, like sex itself, is not illegal if it involves consenting adults.  Both words – consent and adults – are necessary and sufficient conditions for the legality of sexting. 

Sexting involving minors, irrespective of whether initiated by an adult or a minor, violates both state and federal child pornography laws. Thus, child pornography charges can be made not only on adults who send or receive such images to/from minors but also by teens who send such data to adults or other teens.

Sexting with a minor is considered a strict liability crime in many states, i.e. a person can be considered liable for sexting, regardless of what his/her intent or mental state was when sexting. This is tricky because even if the recipient believed that a minor sextor was an adult while engaging in sexting, they are liable to be prosecuted. 

Since it is not possible to prevent other people from sending inappropriate content, sexting laws only prohibit “receiving and keeping” and not merely “receiving” explicit images from or by teens. Thus, a teen violates sexting law not for receiving inappropriate messages, but for choosing to retain them.  For example, if a 16-year old girl sends a nude selfie to her 16-year old boyfriend, and the latter saves the image on his phone, it is considered child pornography. In some states (e.g., Texas), the boyfriend who retains the picture would be charged with an expungable misdemeanor if under eighteen and felony if older.

Many states have specific rules for age of sexting – Connecticut, for example, punishes teenagers between the ages of 13 and 15 for sending inappropriate pictures of themselves, and those in the age group of 13 and 17 for receiving and not reporting such images. Louisiana on the other hand, prohibits anyone under the age of 17 from sending or keeping explicit photographs.  In many states, minors cannot claim consent as an affirmative defense for sexting.  Thus, these laws are variable. For example, Texas allows sexting between minors who date, if the difference in age between the two is not more than 2 years.

Is revenge porn punishable by law?

Revenge porn, as the name suggests, is when one person, irrespective of age, shares private inappropriate photos with others as payback for a fall out of relationship with someone, or as a means to extortion (sextortion as it were).  Almost all states consider revenge porn illegal, and those without specific laws on revenge porn, bunch it under other existing digital laws such as child pornography, harassment, etc. A communication is considered revenge porn under the following conditions:

  • It includes an image of the intimate body part of another identifiable person (genitalia, anus or breast), or an image of another identifiable person engaged in a sexual act of any kind

  • The image or sext that is shared is done by one of the parties involved without consent of the other.

  • The understanding between the distributor and the subject of the photo that the image would remain private is violated.

  • The distributor of the communication does it with the purpose of causing another person serious emotional distress; and

  • The subject of the photo suffers serious emotional distress.

What are the penalties for sexting?

More and more states in the US have framed specific rules for underage sexting. The 2015 update from Cyber Bullying Research Center included laws from twenty states, specifically addressing sending or receiving sexually explicit images from a minor. The states differ in their interpretation of sexting as a strict liability crime, enabling punitive action against sending/receiving, whether sexting is a violation, misdemeanor or felony, and what happens when both participants are minors. Some states like Utah, Florida, and Georgia consider sexting a felony, few others such as Pennsylvania, Nevada, and Texas consider it as a violation that entail fine, counselling, or community service.

In the USA, a minor/juvenile (under the age of 18) engaged in sexting is tried through the juvenile justice system that has adifferent penalty setup than the regular adult justice system.  Some common penalties for sexting for minors include:

  • Warning. Depending upon the severity of the sexting crime, the youth may be let off with a strong verbal warning.

  • Community service or counselling. Community service often accompanies a warning, and the teenager may have to perform a certain number of hours of community service. The teen may also be required to undergo individual or family therapy.

  • Fine. Many states impose monetary fines on sexting crimes, the amount of which depends upon the nature of the crime and the frequency of it.  Floria, for example imposes a $60 fine on first-time juvenile sexting offenders. 

  • Probation. Repeat offenders or teens engaged in severe acts of sexting may have to report to a probation officer, stay in school, and comply with other court orders.

  • Detention. Severe sexting by the teenager could also land the juvenile in a detention center, home confinement, group home, or other placement location.

Schools may punish students for sexting even if state laws do not, especially if sexting leads to bullying, distractions, or outbreaks of bad behavior. Likewise, using school computers and resources to sext can attract penalties in states such as Arizona.

The adult penalties are more severe than juvenile penalties: 

  • Incarceration. Child pornography carries a potential prison sentence of 5 years or more. Milder forms of sexting may have anything from one to five years of prison sentence. 

  • Fines. Fines for sexting by adults against non-consenting others and/or minors can exceed $5,000.

  • Probation. An adult convicted of sexting can also face probation of a year or longer

  • Sex offender registry. Adult teens convicted of a sexting crime are considered sex offenders and are registered in the state sex offender registry maintained by the police. The registration requirements differ by state, but usually last at least 10 years.

Typical Federal penalties are as follows:

Chart snapshot

The Cyberbullying Research Center has consolidated the sexting-related rules in most states of the US.  They may be accessed through the following links.

 

Educating the child on digital communication ethics

It is important to be proactive in communicating with the teen/child. It’s good to have the conversation early on and to check in periodically  to ensure that the child is not crossing limits. The child must be made aware of the consequences of sexting. Parents should also be prepared to report more serious incidents to law enforcement if your child is being blackmailed or victimized online.

Encouraging the child to ask questions, educating them about affirmative consent, and providing resources that will help them think things through on their own are necessary activities to save the child from falling down the rabbit hole of sexting.

 

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