Sexting Can Land You in Jail

It’s a fact of modern life that we communicate extensively via text messages and social media messaging apps. Entire generations have grown up with the format, using social media platforms like Snapchat and Facebook Messenger.

Teen sexting crimes vary by state and jurisdiction. Penalties generally depend on the ages of the individuals involved and whether the parties exchanged messages consensually.

For legal advice about the sexting laws where you live, talk to a local criminal defense lawyer.

Is Cellphone Sexting Illegal?

Sexting is an issue that has given rise in many states to a double standard that is difficult to reconcile: Even where it’s legal for teens to consent to sex, it may be illegal for them to exchange nude photos or images of sexual acts.

In some cases, teen sexting carries severe penalties, including felony charges and registration as a sex offender.

Example of a Sexting Crime in Washington State

In 2017, the Washington State Supreme Court upheld a criminal conviction of an underage teen for second-degree criminal sexual conduct. This required the teen to register as a sex offender for sending a picture of his penis to someone over 18. The criminal charges were based on a law making it illegal to produce or disseminate child sexual abuse material.

The court noted, “We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other. We also understand the worry caused by a well-meaning law failing to adapt to changing technology. But our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us.”

At the time, Washington state law had no exception for the consensual exchange of sexting images between teens. However, in 2019, Washington passed a new law applying to underage sexting.

It is still a crime to possess sexual depictions of a minor under the age of 13. Sexually explicit possession of images of minors between 13 and 17 is a gross misdemeanor. However, the law specifically exempts a minor from prosecution for possessing images of other minors who are 13 years of age or older.

How these things are prosecuted is really a case-by-case determination. It depends heavily on the jurisdiction you’re in. The prosecuting attorney’s office has wide latitude in charging decisions.

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Sexting Laws by State

Different states have different approaches to dealing with teen sexting charges. Even state criminal prosecution can vary by county and jurisdiction.

Some states have specific sexting policies that apply to teens consensually exchanging images of themselves involving sexually explicit conduct. Other states strictly apply underage child pornography laws, even if the person charged is underage.

Various factors that can determine the criminal charges (or jail alternatives) can include:

• Age of the individual sending
• Age of the individual receiving
• Consent of the people involved
• Motivation to distribute (to harass or threaten)

Talk to a local sex crime defense attorney to understand the possible criminal charges in your state.

Sexting and Child Sexual Abuse Material Laws

Seattle criminal defense attorney Amy Muth has represented clients caught in this type of situation. Muth says sex crime charges can arise from a variety of circumstances.

“Often, it’s because a parent stumbles upon a phone, comes across images, and is not very happy about it. I’ve also seen situations where clients are prosecuted for another offense, and they get a search warrant for their phone that uncovers some of these images.”

Muth notes the potential gap between the child sex abuse laws and minors exchanging nude selfies. “I understand and don’t discount the pernicious effect of [child sexual abuse images]. But it’s one thing when this is a nonconsensual setting, and someone is being exploited, and another thing when teens have this communicative device, an extension of them communicating,” Muth says.

“Particularly in Washington, where the age of consent is 16, and a minor is under 18. However, there is case law that says if it’s legal to perform the act, then you can’t be prosecuted for talking about it. Sexting has become normative adolescent sexual behavior. These are kids who are digital natives, and their phone is an assistive device in communication.”

As to prosecution, it can be a crapshoot whether and what charges might be brought when there are underage sexual images on one’s phone.

Muth explains, “How these things are prosecuted is really a case-by-case determination. It depends heavily on the jurisdiction you’re in. The prosecuting attorney’s office has wide latitude in charging decisions. They might not be prosecuted at all, or they might be charged with misdemeanor dissemination of [child sexual abuse images], with a less serious felony sex offense, or with a non-sex offense.”

If You Are Facing a Sex Offense, Get a Criminal Defense Lawyer

If you or someone you know is facing sexting charges from law enforcement, it’s critical to get legal advice from an experienced criminal defense attorney who has defended people facing sex offense charges.