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What is Sexting? Is it Illegal?

June 23, 2020 Federal Criminal Attorneys

Much like the name implies, the act of sexting involves sending sexual explicit messages digitally. Sexting occurs using a phone’s text messaging system or third-party apps. Sexting often takes different forms, and may include pornographic or sexually suggestive images and videos, as well as illicit text content.

Is Sexting Illegal?

Most laws governing sexting specifically address sexting involving minors. Sexting in these instances is a violation of both federal and state child pornography laws. It’s important to note that any suggestive image falls under the definition of child pornography, whether explicit or not. Furthermore possession of such an image is sufficient for prosecution, regardless of the provenance of the image.

From a federal standpoint, intent does not play a role in determining whether or not a crime has been committed. Instead, anyone in possession of child pornography is liable for prosecution. This remains the case for adults who were unaware they were sexting a minor.

Beyond the federal implications of sexting, each state sets its own laws about the legality of exchanging sexually explicit content. In some cases, conviction of sexting with a minor results in a felony, whereas other states define sexting as a misdemeanor or violation. Furthermore, sentencing and fines vary widely across the board.

Is Sexting Between Minors Illegal?

The legal framework around sexts exchanged between minors varies enormously across the board; typically, these cases are prosecuted less severely because of the age of both individuals involved. Nevertheless, minors can still incur penalties including sex offender registration, juvenile sentences, and fines, all as a result of sexting behavior. Because all images of minors are considered child pornography, there is no situation in which the creation and subsequent distribution of such images is legally allowed.

Depending on the jurisdiction, sexting as a minor legally can cause a child to be both perpetrator and victim of a crime. This makes it imperative for parents to clearly explain the dangers of sexting to their children. Sexting often has long-lasting consequences for minors. Refraining from exchanging such content is essential to avoid legal issues.

How Does Consent Impact Sexting Laws?

Sexting with consent is not typically a crime, provided it occurs between legal adults. Unsolicited sexts can result in legal charges, however, making it imperative for adults to clearly receive consent before sending sexual content. Furthermore, because minors cannot legally consent to sex, there is no exception for sexting with an underaged person. Again, this is the case, even when one of the parties believes the other individual to be of legal age.

Understanding Revenge Porn

Even when sexual content has been consensually exchanged, recipients can face legal ramifications if the content received is in turn distributed to third parties. Often referred to as revenge porn, this scenario takes place when photos or videos are shared with other parties without the explicit consent of the creator. Almost every state now has legislation on the books banning such activities, and the distribution of such images with malicious intent carries misdemeanor penalties.

Sextortion is another similar crime which involves using photos or videos to coerce someone into certain behaviors or activities. Whether such images are procured through sexting the victim or other illicit means, including hacking or hidden cameras, the behavior is prosecutable. Sextortion and revenge porn often go hand in hand, and many states charge accused parties with multiple crimes based on the severity of the actions involved.

Many view sexting as a harmless activity when it occurs between consenting adults, but it’s important to fully understand the potential pitfalls of engaging in this behavior. Even when sexting with a minor occurs accidentally, the punishment for this crime is often severe. Furthermore, adults sexting with one another are not immune to legal prosecution, should the images exchanges be inappropriately distributed with other recipients. Anyone engaging in sexting needs to educate themselves on the potential ramifications of this behavior and carefully weigh the decision to sext in order to avoid prosecution.

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