State-by-State Differences in Sexting Laws
What is Sexting?
While not all state laws define sexting, it’s generally regarded as the act of electronically sending or sharing sexually explicit images and text. These can be nude or semi-nude images or just explicit text of a sexual nature. Typically, sexting occurs via text message (aka sext), but any electronic transfer fits the definition. For instance, emailing or sharing sexually explicit images from a digital camera legally constitutes sexting.
With young people, sexting often happens between a couple in a relationship who lack appreciation for the illegal nature of what they are doing. Very often, the ramifications for these actions are serious and may lead to criminal prosecution. This is especially true with “revenge porn,” when images and messages get forwarded on to friends and classmates, or get posted on the Internet. Just the threat of this can be emotionally devastating and is considered sextortion.
Is Sexting Illegal?
When sexting involves minors, it violates both state and federal anti-child pornography laws.
State and federal anti-child pornography laws are very broad. For instance, federal law (and most if not all states) considers any sexually suggestive image of a minor as child pornography. The government can prosecute anyone for the production, distribution, reception, and possession of an image of child pornography. Hence, sexting and possessing a sext of a minor is illegal. Moreover, the act constitutes a strict liability crime. This means the government can prosecute someone even if they reasonably thought the sexts were from an adult but were actually from a child.
While sexting can fall under the purview of anti-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 and receiving;
- conviction will constitute a violation, misdemeanor, or felony;
- legal provisions 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 states, including Pennsylvania, Nevada, and Texas, have legal provisions to treat sexting as a violation. In these less serious states, judges order a fine, counseling, or community service.
When sexting occurs between two minors, again, there is much variation between states in how to prosecute these cases. Generally, however, the laws treat sexting between minors with more levity than in anti-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 between two adults. Only 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 sexting occurred between two minors. Otherwise, like with statutory rape laws, minors cannot provide consent.
What Happens If There Was Consent Between Two People, But No Consent to Distribute?
26 states explicitly consider revenge porn illegal. Revenge porn is the act of distributing another’s sexually explicit images to third parties without consent. These laws can apply to both minors and adults.
States with no laws to address revenge porn treat it as a crime under anti-child pornography, harassment, and other statutes.
How Do I Talk With My Kids About Sexting?
If you think your kids are sexting, talk to them about it. If you are not sure, talk to them about. Let them know that you’ve discovered some new information that you want them to be aware of, that sexting is illegal for minors often even if everyone is a minor and it is consensual. We have an article with tips and more information on how to talk about this issue with your teen or tween.
Additionally, sign up for Bark monitoring, which helps keep your child safe online by providing you with alerts to potential issues like sexting and sextortion. This can help you support your children in a positive way as they explore the digital world.
How Do I Find Sexting Laws for My Jurisdiction?
As seen by the discussion above, sexting laws widely vary. Many state governments, like California, are still in the process of debating sexting laws. Below we provide a link to information on your state’s sexting laws if there is one, often there is not. If there is not we provide a link to information on revenge porn, child pornography, or sexual exploitation of a child.