These days we do everything with our phones. Chat. Navigate. Surf the web. Manage our finances. Play games. Watch videos.
It makes sense, then, that we would also use our phones to flirt with our romantic partners. In fact, the practice of “sexting” – sending nude or sexually suggestive photos by text messages or other messaging platforms – has become commonplace.
Although this may be harmless when it occurs between two consenting adults, serious criminal charges can result in certain situations. Sexting is particularly dangerous when one or both of the participants are under the age of consent, because even when sexting occurs between two minors, this still qualifies as electronically transmitting sexual depictions of children.
However, this practice is still relatively common, so it is very important to understand the laws surrounding sexting to ensure that normal flirtation in a consensual relationship does not result in life-altering criminal charges.
Teen Sexting Laws in Texas
Texas punishes sexting between minors under its law prohibiting electronic transmission of sexual depictions of children. Under this statute, it is illegal for one minor to send a sexually explicit or suggestive image of someone under 18 years of age to another minor. This includes images of the sender, the recipient, or another minor child.
However, prosecution is likely to offer some relief in certain circumstances. For example, if the images are solely of the sender or recipient, if they were sent within a dating relationship, and if both parties are not more than two years apart in age (even if one party is over 18), this is generally a misdemeanor-level offense.
Adults who are engaged in a dating relationship with a minor more than two years younger face much more serious penalties for sexting. Under Texas law, adults could be charged for distributing sexual images to a minor, possessing or distributing child pornography, or promoting sexual performance by a minor child.
These offenses are considered felonies, and in most cases will require registration as a sex offender. Adults may also face federal prosecution for sexting with minors, depending on the circumstances of the alleged offense.
Sexting and Federal Laws
Depending on the circumstance of the alleged offense, sexting may also be a crime under federal laws, and in some cases could be prosecuted federally, which carries much more severe sentencing and penalties.
The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 makes it federally illegal to produce, distribute, receive, or possess with intent to distribute any sexually explicit or suggestive image of a minor child. Knowing possession of this material, even if you do not intend to distribute it to anyone else, is also a crime.
The PROTECT act also criminalizes causing a minor to take part in any sexually explicit conduct in order to visually depict that conduct. This would include encouraging or asking a significant other who is under 18 to send explicit images. This is prosecuted as a separate offense.
It is also a federal crime to use a computer to transport, receive, distribute, or reproduce for distribution any sexually explicit or suggestive image of a minor, or other material that constitutes child pornography, which will be an additional charge. It is an additional federal crime to solicit sexually explicit material involving a minor.
Importantly, federal prosecution of juveniles for sexting is unlikely. The Federal Juvenile Delinquency Act provides that, where possible, juveniles should be prosecuted in state courts.
Texas law says that sexting between two minors is a Class C Misdemeanor, which can include a fine of up to $500 and a serious criminal record. Penalties may be enhanced if there are prior convictions, or if the sexting was part of cyberbullying or another form of harassment.
Importantly, a minor who receives sexts as a part of cyberbullying or harassment will be unlikely to be charged with a crime, so long as that individual does not send the sext to anyone else.
If an adult sexts with a minor, he or she is likely to face child pornography charges at the state or federal level. Penalties further increase if the adult distributed the images to others as child pornography. Penalties include up to 20 years in prison and a fine of up to $10,000 for each count.
Sex Offender Registration in Texas
Any adult convicted of sexting with a minor will most likely be required to register as a sex offender after release from prison. Sex offenders are generally required to register for a minimum of 10 years, and up to life.
It is unlikely that a juvenile will be required to register as a sex offender for sexting. However, this possibility cannot be ruled out, and if your child is facing charges for sexting, we recommend speaking with an experienced Texas defense attorney immediately.
The takeaway? Engaging in sexting with a minor, even if you are a minor yourself, can result in serious criminal convictions. Any investigation or charges should be taken very seriously.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.