State-by-State Differences in Sexting Laws
**This blog post was updated on April 6, 2021.**
Sexting among teens and tweens is a relatively new phenomenon, and many state legislatures are still trying to determine what to do about it. Because of this, sexting laws by state vary widely. It can be easy to assume your child would never sext someone else, but kids often feel pressure to exchange sexual messages, images, or videos, so taking the time to have an open conversation with them can give them the opportunity to express any concerns. If you need extra support, Bark can help by alerting you about sexual content so you can talk through issues if your kid experiences them.
In this post, we’re going to give you an overview of some of the common questions surrounding sexting laws, as well as links to helpful resources on sexting laws by state.
What is Sexting?
While not all state laws officially define sexting, it’s generally regarded as the act of digitally sending or sharing sexually explicit images and/or texts. These can be nude or semi-nude images or just explicit texts. Typically, sexting occurs via text message, but any electronic transfer fits the definition — emailing, sending Instagram DMs, Snapchat selfies, and even TikTok messages. Young people don’t always know that what they’re doing can, in fact, be illegal and that the ramifications for these actions lead to criminal prosecution.
Sexting Laws: Is Sexting Illegal?
When sexting involves minors, it violates both state and federal child pornography laws. But these laws can be very broad. For instance, federal law considers any sexually suggestive image of a minor to be child pornography. The government can prosecute anyone for the production, distribution, reception, and possession of child pornography.
It follows that sexting and possessing a sext of a minor is illegal. Moreover, it’s a strict liability crime. This means the government can prosecute someone even if they reasonably thought the sext was from an adult but was actually from a child. Simple possession is enough to be found guilty.
While sexting can fall under the purview of child pornography laws, many states have laws that specifically address this issue. The Cyber Bullying Research Center’s latest legislative update from 2015 reported that 20 states’ laws specifically address sending or receiving sexually explicit images from a minor. However, these state laws vary as to whether:
- Sexting is a strict liability crime.
- The laws require punitive action against sending/receiving.
- A conviction will constitute a violation, misdemeanor, or felony.
- Legal provisions exist to address “Romeo and Juliet” situations, where two minors send sexually explicit images to each other.
For example, ten states (including Utah, Florida, and Georgia) have felony provisions for sexting. Meanwhile, ten other states (including Pennsylvania, Nevada, and Texas) have legal provisions to treat sexting as a violation. In these less punitive states, judges order a fine, counseling, or community service.
When sexting occurs between two minors, state law varies in how to prosecute these cases. Generally, however, the laws treat sexting between minors with more levity than in child porn cases. For example, some states do not require sex offender registration, as is the case in Rhode Island, Vermont, and Nevada.
What If There Was Consent?
Consent can be a defense to sending or receiving sexts, but generally only when it occurs between two adults. A handful of states allow this defense, including Florida, Louisiana, Nebraska, New Jersey, New Mexico, North Dakota, Oregon, Utah, and Vermont. Of these, only Nebraska treats consent as an affirmative defense if the sexting occurred between two minors. Otherwise, as with statutory rape laws, minors cannot provide consent.
What If There Was Consent, but Not to Distribute?
When couples break up, there’s another situation that poses potential problems: revenge porn. Revenge porn happens when one person shares private explicit photos online or with others as payback. Revenge porn also can lead to sextortion, a serious crime that occurs when someone threatens to distribute these images if you don’t do what they say. This can include paying money, performing illegal acts, or even sending more explicit photos.
Many states explicitly consider revenge porn illegal, and these laws can apply to both minors and adults. States with no laws to address revenge porn treat it as a crime under child pornography, harassment, and other law.
How Do I Talk With My Kids About Sexting?
If you discover that your child has been sexting, you might be tempted to take away their phone and punish them immediately. But that risks damaging your relationship, causing them to shut down and hide things from you. Instead, be proactive about discussing the issue in a calm and thoughtful manner. It’s also a good idea to open the conversation before it’s too late and to check in occasionally to make sure everything is okay. Leave room for your child to ask questions, talk to them about affirmative consent, and provide resources that will help them think things through on their own.
You should also make sure that they’re aware of the consequences of sexting. If your child does stray into troubling legal territory, putting together an action plan can help you to protect everyone involved. Parents should also be prepared to report more serious incidents to law enforcement if your child is being blackmailed or victimized online.
How Do I Find Sexting Laws for My Jurisdiction?
As we’ve discussed, state laws vary widely. Some state governments, like California, are even still in the process of debating them. Below, you can find a link to more information on your state’s specific sexting laws.
Bark is a comprehensive online safety solution that empowers families to monitor content, manage screen time, and filter websites to help protect their kids online. Our mission is to give parents and guardians the tools they need to raise kids in the digital age.