Facebook, Instagram, selfies—we live in an age of instantaneous electronic communication. The teens of today share the details of their lives via social media; they seem to spend much of their time snapping photos to share and conversing by text message. But some teens go beyond sharing the everyday details of their lives—they share the intimate details of their lives or the lives of others by engaging in what’s commonly called “sexting”. Sexting is the sending of a nude or revealing photo of oneself or of another person to someone via cell phone text messaging.
Certainly teen sexting is a cause for concern to parents and often ends up causing the teens involved a lot of embarrassment, but the consequences of teen sexting can be far worse than an angry parent and teenage embarrassment. While many states have laws that specifically address teen sexting, California does not. In the State of California, a teen who is caught sexting or, even simply possessing a sext message on his or her phone may face charges under the California sex offense statutes.
It is illegal in California to produce, possess or distribute “obscene matter[1]” of a child under the age of 18. (Pen. Code §311.1, 311.2 and 311.3). Violation of this law applies to any obscene image of a child, whether it’s a hard copy or an electronic image. When a text message depicts obscene images of a minor under the age of 18, the person who takes the photo, sends it as a text, or just simply possesses the text[2] can be prosecuted under the child pornography statute. The law applies to minors as well as adults.
Often teen sexting involves the texting of a self-image to a girlfriend or boyfriend; sometimes that image is forwarded to other teens; occasionally a sexting rings begins where a sexual image of another teen is shared between a few or many via text message. Whenever an obscene image of a person under the age of 18 is shared, whether it’s only with one other person or with many, it is a violation of Penal Code section 311.
A conviction on Penal Code section 311 can have severe consequences. A violation of this statute may be charged as a misdemeanor or a felony. But the most serious consequence is that a conviction under this statute can subject the violator to the state sex offender registration requirement. As a practical matter, most teens caught sexting will not face this extreme consequence, but he or she might very well still have to face a judge, with the likely outcome of being required to complete counseling, education and/or community service.
However, if the teen is over 18 and the sexual image is of a person under 18, he or she is much more likely to face the full wrath of Penal Code section 311. A good example is when two high school seniors, one 17 years old and one 18 years old, are in a relationship. The 17 year old texts a nude photo of him or herself to the 18 year old. The 18 year old is then caught with the text on his or her phone. The Court must treat the 18 year old as an adult and the district attorney’s office is likely to go after the 18 year old in the same way that it would in any case where an adult possesses child pornography.
But what if the text message depicts a sexual image of person over the age of 18? That image is no longer child pornography and if shared among adults, it is not illegal. However, if it is sent to a person under the age of 18, is a violation of California Penal Code section 288.2, a statute prohibiting lewd acts with a child. A conviction under this statute carries a severe penalty as it mandates a lifetime registration as a sexual predator. Imagine the example in the previous paragraph, but this time the 18 year old texts a sexual image of him or herself to the 17 year old. That text message could potentially ruin the 18-year-old’s life!
The best advice to your child is: “Don’t sext and if anyone sends you a sext message, delete it immediately.” The best preventative is to educate your child to respect him or herself and others. Teens are often immature and impulsive and even good kids sometimes engage in bad behavior. If your child is arrested for sexting, don’t take it lightly because it can result in serious consequences. It is important to consult with a criminal defense attorney with experience in juvenile defense who can advocate for your child. In most sexting cases, an effective juvenile defense attorney can work with the prosecution to ensure that your child does not end up with a sex offense conviction on his or her record.
[1] “Obscene matter” means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Pen. Code §311(a))
[2] Assuming the receiver of the sext has stored the image on his or her phone and did not discard it upon receiving it.