Sexting is the digital sharing and receiving of sexually explicit messages or texts called sexts.
Sexts can be nude selfies, obscene images, instant messages, memes, gifs, or other lewd and sexually charged content sent as instant messages on popular online apps.
Consenting Adults
In most states, sexting between consenting adults is legal so long as minors are not part of sending or receiving them.
Violations By Minors
Most states have laws explicitly prohibiting minors from sending or receiving sexual images or others forms of sexually transmitted content, including selfies.
When sexting involves sexually explicit pictures of minors, there is a risk of violating child pornography laws, making possessing, distributing, and sharing such material a felony.
Child Pornography Laws
Under federal law, images of child pornography are considered illegal contraband under Title 18 of the United States Code.
Under Federal law, child pornography is defined as any visual image of sexually explicit conduct involving a minor.
Severe Penalties for Producing and Distributing Child Pornography
Violations of federal child pornography law carry severe penalties. For example, a first-time adult offender convicted of producing and distributing child pornography with enhancements can face up to 30 years in federal prison.
The Anthony Weiner Case – Involving A Minor
Sexting reached a new level of notoriety in 2016 when Anthony Weiner, then a 54-year-old New York congressman, was criminally charged with sending obscene photographs of himself to a 15-year-old minor.
Anthony Weiner pleaded guilty to one count and was sentenced to 21 months in prison. The New York laws were clearly intended for adults sexting to minors – not minors sexting with other minors.
States Challenged in Legislating Crimes Relating To Sexting
Lawmakers in different jurisdictions struggle to legislate these issues, especially when determining different categories of penalties when the offenders involve consenting minors. According to most experts, most sexting offenders are minors or those who have just reached the age of majority.
Some states interpret sexting as a legal component of other sex-related crimes such as child pornography, indecent exposure, and other sex crimes which can carry significant prison time.
Since minor-to-minor sexting can be classified under existing sex-crime laws like indecent exposure, lawmakers do not want juvenile or near-juvenile offenders prosecuted for crimes intended to cover adult offenders, such as sex crime offenders associated with making, distributing, and possessing child pornography.
Prosecutorial Discretion
To avoid minors facing penalties legislated to punish adult sex-crime offenders, many legislators insist that prosecutors be allowed to exercise a more comprehensive degree of discretion in who they prosecute and the mitigating or aggravating circumstances surrounding the case.
In other words, consenting minor-to-minor sexting should be treated on a case-by-case basis until legislation can be enacted that can comprehensively address this complicated area of the law.
Sexting Between Consenting Adults
These issues are not easily resolved. In California, for example, sexting between consenting adults is legal. Considering this fact, does it seem fair to impose strict punishments for sexting between consenting minors? A question that is currently being debated among legislators.
As mentioned, state laws governing sexting are still in development.
Below you will find a few states for your review that have or are in the process of enacting legislation in this area:
Six Examples of State Sexting Laws
Consult With A Criminal Defense Lawyer
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