What is "Sexting" and when is “sexting” a crime?
First, “sexting” is a colloquialism for any type of electronic communication where the discourse of the communication relates to sexual activity in a manner that is meant to arouse either person to the communication.
Sexting is not illegal when the sexting is between two consenting adults. However, where one adult sends sexual matter to another person without consent of the receiving adult, then other crimes may apply depending on the type of material sent, the frequency of the communication, and the purpose of the communication. These crimes include stalking, harassment by telephone, invasion of privacy, and more.
For purposes of this article, we will discuss sexting crimes as they relate to crimes against minors, including the crimes of annoying or harassing a minor (PC 647.6), send lewd matter to a minor (PC 288.2), distribution of child pornography (PC 311.1), Contact minor for lewd act (PC 288.3), and arrange to meet a minor for lewd act (PC 288.4).
Sexting with a Minor
While sexting between consenting adults is only a crime if one of the adults does not consent to the communication, or where the matter send is illicit (i.e., distributing child pornography, reveal nude images to harm, stalking, harassment by phone, etc.), sexting with a minor is always a crime.
For example, David is twenty-one (21) years old. David sends nude images of himself to Diana, who is only sixteen years old (a minor in California). David knows that Diana is a minor when he sends the nude images, and he sends the nude images to Diana to arouse Diana. Result: David may be charged with sexting a minor even if Diana does not object to David sending her the nude images (PC 288.2 [Send Lewd Matter to a Minor]).
Electronic Communication: Sexting with a minor is a crime that usually occurs electronically through social media or texting apps (i.e., through text messages, email, webcam, Facebook, Telegram, Twitter, Instagram, Snapchat, etc.). Though technically, a defendant can commit the crime of sexting by way of non-electronic means, such as by leaving written notes for a minor at the minor’s school on a messaging board or by mail.
Note: When sexual communication between a minor and an adult occurs in person, such as when the defendant and the minor are in the same room, the defendant may be charged with more serious crimes, such as meet a minor to commit a felony sex act (PC 288.4(b), annoy or molest a minor in a residence (PC 647.6(b)), or sexual battery (PC 243.4).
Live Video Feed Situations: For purposes of sexting a minor, a live video feed between the minor and the adult, such as communication via Facetime, Zoom, video chat, etc., does not constitute an in-person meeting that can elevate a sexting crime.
For example, David arranges to meet his minor girlfriend, Sarah, for sexual intercourse. But Sarah tells David that she can only sext online because she cannot leave her house. David agrees to “meet” Sarah online for mutual masturbation videos. Result: David may be charged with arranging to meet a minor (PC 288.4), but the online “meet” between Davida and Sarah does not elevate the sexting crime to an in-person meeting with a minor for a lewd act (PC 288.4(b)), a more serious allegation.
Sexting Between States: Sexting with a person under the age of eighteen is a crime in California. This is true even if the person who is classified as a minor is not classified as such in the state from which he or she is communicating with an adult.
For example, Denis is in California. His girlfriend, Denise, is seventeen years old, and she lives in Texas. A 17-year-old is not classified as a minor in Texas. Denis and Denise engage in sexting with one another, and they send nude pictures to each other Result: David may be charged with the sexting crimes of contacting a minor for a lewd act (PC 288.3), send harmful matter to a child (PC 288.2), possession of child porn (PC 311.11), and annoy or molest a minor (PC 647.6(a)).
Sexting Crime Examples
David sends text images of his penis to his girlfriend, Diana, for the purpose of arousing Diana. Result: David may be charged with annoying or harassing a minor (PC 647(a)).
John solicits Maria, a minor, for prostitution services. Result: David may be charged with contacting a minor for a lewd act (PC 288.3) or soliciting a minor for prostitution (PC 647(b)(3)).
Robert arranges to meet Jessica, a minor, for sex. Robert knows that Jessica is a minor. Result: David may be charged with arranging to meet a minor for a lewd act (PC 288.4).
Melissa, a teacher at middle school, sends nude pictures of herself to one of her students to arouse her student. Result: Melissa may be charged with annoying or molesting a minor (PC 647.6(a)), and harmful matter send to a child to seduce (PC 288.2)
Jose asks his minor girlfriend, Amber, to send naked pictures of herself to Jose. Amber sends the nude pictures to Jose as requested. Result: Jose may be charged with possession of obscene matter depicting a child (child pornography) (PC 311.11(A)).
Note: Sexting between two minors is a crime for both parties to the communication, but prosecution is rare in this situation as there are many laws that protect minors from being prosecuted for sex crimes in California. This is especially true in prostitution, pandering, pimping, and human sex trafficking crimes. Nevertheless, when prosecution of minors for sexting occurs, the juvenile court will usually have jurisdiction of the criminal case.
Federal Laws: Sexting a minor may be considered a crime under U.S. federal law, including federal child pornography crimes (18 USC 2252), and sexual exploitation of a child (18 USC 2251)
Sexting a Minor Penalties
The penalties related to sexting minor depend on the circumstances of the case and the related criminal charge.
For example, sexting a child under fourteen, for the purpose of meeting the child to engage in sexual intercourse with the child, carries a much longer prison sentence than the crime of sexting a child to have that child pose for pornographic pictures or videos. This is true even though both crimes are filed under the same statute (PC 288.3).
For more specific penalties related to a particular sexting crimes, see the following articles:
PC 288.2 Send Harmful Matter to Minor to Seduce
PC 288.3 Contact Minor for Lewd Act
PC 288.4 Arrange to Meet Minor for Lewd Act
PC 311.11 Distribute Child Pornography
PC 647.6(a) Annoy or Harass a Minor
Misdemeanor v. Felony Sexting
A sexting with a minor allegation is usually classified as a felony crime; however, the crimes of possessing child pornography (PC 311.11), annoy or harass a child (PC 647.6(a)), and send harmful matter to a minor to seduce (PC 288.2), may be charged alternative as a misdemeanor, or as a felony (i.e., “wobbler” offenses). When misdemeanor versions of these offenses are charged, the defendant will face much less possible jail or prison time.
For example, Manuel is charged with felony possession of child pornography (PC 311.11) after his girlfriend, Maria, sends nude photos of herself to Manual. Maria is a minor, but she is almost 17 years old, and she only sent one nude photo to Manuel without his request. Because of the circumstances, the district attorney decides to reduce the felony PC 311.11 charge to a misdemeanor PC 311.11 charge. Result: Manuel will face much less prison time with a misdemeanor conviction than he would serve with a felony conviction of Penal Code 311.11.
Sex Offender Registration: Virtually every sexting offense requires sex offender registration upon conviction; however, the length of sex offender registration might vary depending on the fact of the case. For more specifics as the length of sex offender registration, see CA’s New Tier System for Sex Offenders. For more information on the requirements of sex offender registration, see PC 290 Requirements.
Crime Involving Moral Turpitude: Sexting a minor is usually classified as a crime involving moral turpitude. A crime involving moral turpitude is any crime that involves dishonesty, or any crime that is considered morally wrong. Crimes involving moral turpitude, including most sexting crimes, will result in negative direct and indirect consequences for the defendant related to immigration status, professional licensing status, and military service status.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. In some cases of sexting a minor, a criminal conviction might not lead to a prison or jail sentence. Eligibility and availability for a probation sentence depends on the exact sexting crime for which the defendant is convicted, and the circumstances surrounding the allegation.
For more information on the eligibility and availability of a probation sentence after conviction for sexting a minor, see the following sexting related crimes:
PC 288.2 Send Harmful Matter to Minor to Seduce
PC 288.3 Contact Minor for Lewd Act
PC 288.4 Arrange to Meet Minor for Lewd Act
PC 311.11 Distribute Child Pornography
PC 647.6(a) Annoy or Harass a Minor
Additional Penalties: In addition to any jail or prison sentence after a conviction for sexting a minor, the defendant will suffer most of the following direct and indirect penalties: criminal protective orders (CPO), which restrict the defendant from further contact with the victim minor, restitution orders, possible civil lawsuits, loss of reputation and employment, loss of child custody or child visitation, loss of scholarship opportunities, court fines, fees and penalties, and more.
Defense to Sexting Crimes
Just as the penalties are different for every sexting crime, the defenses are unique to any sexting crime. With that said, the most common defenses incorporated in the defense of a sexting crime includes illegal search and seizure of electronics (i.e., router, computer, cell phone, etc.), coerced statement or confession from the defendant, entrapment, failure to properly Mirandize the defendant before interrogation by law enforcement, insanity, and insufficient evidence to prove the element of the offense.
Mistake of Fact: A reasonable mistake of fact as to the age of the minor may be a defense to a sexting allegation.
For example, Jane is on Tic Toc, a social media app. On Tic Tok, Jane claims to be eighteen (18) years old. John solicits nude images from Jane on Tic Toc after the two have sexual conversations. John truly believes that Jane is 18 years old until he sees her nude images. John immediately deletes the nude images and discontinues sexual conversations with Jane. Result: John may rely on the reasonable mistake of age to a charge of possession of child pornography (PC 311.11), and other sexting crimes.
For more information on the defense of a particular sexting crime, please visit the following articles. For more information in general on defense of sex crimes, please see Sex Crimes Defense Strategies.
PC 288.2 Send Harmful Matter to Minor to Seduce
PC 288.3 Contact Minor for Lewd Act
PC 288.4 Arrange to Meet Minor for Lewd Act
PC 311.11 Distribute Child Pornography
PC 647.6(a) Annoy or Harass a Minor
For more information on criminal charges related to "sexting," including PC 288.2 and 288.3 crimes, contact our sex crimes criminal defense lawyer today. Our team of highly experienced criminal defense attorneys will explain your rights, the law, and your defense options related to any sexting related allegation.
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