What is Sexting?
Sexting describes the combination of sex and texting. Sexting may involve disseminating sexually-explicit or nude images or suggestive text messages in an email, text or chat program using a mobile or cellular device.
In some instances, the person shown in the images previously consented to the capture of his or her images or took the pictures him or herself.
Frequently, the individual depicted in the image takes the photo and then sends it to his or her significant other of his or her own volition. The intent between the parties is to keep the image private between the sender and the recipient.
Unfortunately, if the image is posted to a social media site or on the Internet, or the recipient shares the images via email or text with others, he or she may not have the prior consent of the individual depicted in the image.
Recent Changes in Law
Until quite recently, teenagers accused of sexting were subject to severe penalties because the crime was viewed as promoting child pornography when minors’ images were transmitted.
Many legislators felt the former laws were excessively harsh for juveniles charged with sexting. Governor Rick Perry signed Senate Bill 407 (2011) into law, making sexting messages transmitted by minors a misdemeanor instead of a felony.
A minor individual found guilty of a sexting offense won’t be required to register as a sex offender in Texas today.
The laws of Texas concerning texting have yielded contradictory results due to the age of consent (age 17) in the state.
While a 17-year-old individual may have a consensual relationship with an older individual, he or she isn’t necessarily permitted to send that older individual sexual images.
A 17-year-old individual has the right to legally consent to sex with another party, and he or she may legally share sexually-explicit photographs to a girlfriend or boyfriend who’s within two years of his or her age, but he or she can’t send sexual images to an individual age 20 or older. This scenario could result in an offense for both the teen and adult.
The offender faces a Class C misdemeanor charge for a first-time sexting offense, punishable by a maximum $500 fine.
Second or later offenses are Class B misdemeanors, punishable by a maximum 180-day county jail sentence and up to $2,000 in fines.
In some instances, a first sexting offense may be considered a Class B misdemeanor if the offender sexted another with the intention of annoying, harassing, embarrassing, harming, or abusing the recipient (Tx. Stat. & Code Ann. § 43.261). The offender may also face harsher penalties in that case as well.
Defenses for Minors
Minors accused of sexting face harsh legal penalties in the state of Texas, but defenses are available.
A minor in Texas (under age 17) may avoid prosecution for texting if and when:
- The transmitted images were those of the sender and/or recipient only
- The images were shared within the context of his/her dating relationship
- The parties were no more than two years’ apart in age, including an instance in which one of the parties is older than 18 years of age.
Requirement of Parents
The new sexting laws in Texas are intended to lessen the legal penalties for minor individuals. However, legislators want to ensure that the dangers of sexting are clear.
Parents of teens facing sexting charges are now required to appear in court with their children to face sexting charges.
A judge has the option to order the teen accused of sexting to complete an educational program to learn about the dangers involved in sexting. Parents of these minor offenders may be ordered to attend these programs and are held accountable to ensure their compliance.
Many parents might not understand their son or daughter is sexting but, unfortunately, sexting is quite common today. It may have devastating or even tragic consequences for the individual depicted in the images—or for an individual who possesses or shares these images. It’s possible to participate in this behavior without an understanding of the possible consequences.
The laws haven’t caught up with today’s technology. The potential harm associated with sexting behavior is still the parents’ responsibility. For that reason, it’s necessary for parents to learn more about sexting practices and talk frankly with teens or pre-teens about sexting’s potential dangers.
Public school districts in Texas must make available sexting prevention education during the school year. This legal requirement is intended to create awareness about the dangers of sexting and the potential punishments for sexting in teens.
Individual school systems in Texas have the discretion to create sexting prevention classes to be offered to appropriate grade levels. Sexting education classes are considered a deterrent to dangerous behaviors and aren’t offered as punishment to students.
Punishment for Adults
An adult faced with charges of sexting one or more minor individuals faces harsh penalties. He or she may be charged with:
- Child pornography possess
- Distribution of sexual images to a minor
- Promotion of child pornography, or
- Promotion of sexual performance of a minor
The above offenses are considered felonies in Texas (Tx. Stat. & Code Ann. § 43.24, -25, & -26) and may be punishable with prison time, Texas sex offender registry, and/or harsh fines, including:
- Up to 20 years in a Texas state prison
- Maximum fines of up to $10,000
- Sex offender registration (from 10 years to lifetime registration) in Texas
An adult in Texas found guilty of sexting with a minor may face federal charges if he or she produces, distributes, receives or possesses sexually-explicit materials with the intention of distributing them.
Prompting a minor to engage in a sexual act or conduct for the purposes of recording or photographing him or her is also considered a federal crime—even if the adult doesn’t electronically transmit it.
The mere possession of such materials is considered a crime under federal law. Shipping, transporting, or receiving materials using an electronic device is also prohibited by federal law. (18 U.S.C. § § 2252, 2252A.)
Adults who face violations of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act [18 U.S.C. § 1466A(a)(1).] in the performance of any of the above acts may face similar sanctions to those imposed under Texas law.
If you are facing federal prosecution for sexting juveniles, you need an attorney right away. The Federal Juvenile Delinquency Act (FJDA) states that, when possible, the offender should face prosecution in a state, not federal, court. (18 U.S.C. § 5032.)
Legal Defenses for Adults
An adult charged with a sexting offense may consult with an experienced criminal defense attorney to determine a legal defense. An experienced sexting attorney may have the opportunity to present evidence that shows the accused didn’t seek or entice inappropriate images.
If the criminal defense attorney shows the court that his or her client didn’t knowingly or willingly receive such images, and that he or she didn’t distribute these images, the court may offer the accused a plea bargain or issue a less severe sentence.
Facing Sexting Charges? Call Now
Sexting is a potentially serious crime. If you or someone you know is charged with sexting, you should reach out to an experienced criminal defense attorney now.
Brett Podolsky is an experienced Texas sex crimes lawyer. He will ensure the protection of your legal rights and therefore do everything possible to protect your personal and/or professional reputation.
Call Brett Podolsky now at 713-227-0087 to schedule a confidential initial case evaluation.