Is Sexting Illegal?

Sexting is the exchange of sexually explicit material through online media. While sexting between adults isn't illegal, it's an issue when underaged individuals get involved. As much as we would like to believe our children are safe from sexting, they may not be, and it is essential to understand all the consequences of sexting. What counts as sexting? Does it have to go as far as exchanging nudes? Is flirting considered sexting? Is sexting illegal where you live? Here are answers to some common questions. 

What is Sexting?

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

Is Sexting Illegal?

Sexting, like sex itself, is not illegal if it involves consenting adults. Irrespective of who initiated it, sexting that involves minors 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. That means a person can be liable for sexting, regardless of their intent or mental state when sexting. This is important to know because even if the recipient believed that a minor was an adult while engaging in sexting, they are liable to be prosecuted.   

Since it is impossible 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 the sexting law not by choosing to keep them. For example, if a 16-year-old girl sends a nude to her 16-year-old boyfriend, and the boyfriend saves the image on his phone, it's 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 but a felony if older.    

Many states have specific rules for different age groups when sexting. Connecticut, for example, punishes teenagers between ages 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. On the other hand, Louisiana 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 children who are dating and if their age difference is between two years.

Is Revenge Porn Punishable by Law?

Revenge porn, as the name suggests, is when one person, regardless of age, shares explicit private photos with others as payback for a fall out of a relationship or as means of 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. An exchange is considered revenge porn under the following conditions: 

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

• The image or sext that is shared includes one of the parties involved without the 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 to cause another person severe emotional distress.  

• 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 addressing sending or receiving 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 a violation that entails a fine, counseling, or community service. 

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

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

• Community service or counseling. 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 fine depends on the nature of the crime and its frequency. Florida, for instance, charges a $60 penalty 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 or more years. Milder forms of sexting may have anything from one to five years. 

• Fines. Fines for sexting with non-consenting adults or minors can exceed $5,000.

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

• Sex offender registry. Adults convicted of a sexting crime are considered sex offenders and are registered in their state sex offender registry. The registration requirements differ by state but usually last at least ten years. 

Typical federal penalties are as follows:

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

• Alabama 
• Alaska
• Arizona 
• Arkansas 
• California
• Colorado 
• Connecticut 
• Delaware 
• D.C. 
• Florida 
• Georgia 
• Hawaii 
• Idaho 
• Illinois
• Indiana   
• Iowa 
• Kansas 
• Kentucky 
• Louisiana
• Maine 
• Maryland 
• Massachusetts 
• Michigan 
• Minnesota 
• Mississippi 
• Missouri 
• Montana 
• Nebraska 
• Nevada
• New Hampshire
• New Mexico 
• New York
• North Carolina 
• North Dakota
• Ohio 
• Oklahoma
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• Texas
• Utah
• Vermont
• Virginia
• Washington
• West Virginia
• Wisconsin
• Wyoming

Educating your Child on Digital Communication Ethics

It is vital to be proactive in communicating with your child. It's good to have the conversation early on and check in periodically to ensure that your child is not crossing limits. Teens must be aware of the consequences of sexting. Parents should also be prepared to report more severe incidents to law enforcement if their child is being blackmailed or victimized.  

Encouraging your child to ask questions, educating them about affirmative consent, and providing resources to help them think things through is necessary to save your child from falling into the trap of sexting.