Legal Issues Around Sexting

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Sexting can be fun, but you might unwittingly break some laws you didn’t know about. For example, a lot of teens under 18 years old don’t realize that the sexy photos they have of their sweetheart could, in a court of law, be considered possession of child porn or distribution of child porn (if they shared it with someone else), which are very serious offenses, and may require those involved to register as sex offenders. Even taking a nude or semi-nude “selfie” could be considered promotion of child porn.

Unfortunately, the law doesn’t clearly distinguish between naive high schoolers and pedophiles trolling the Internet, thus, both adults and young people should be aware of the potential risks. Below are some answers to common questions regarding legal issues around sexting:

Q: When is sexting considered illegal?

A: There can be some misunderstandings around what “counts” as sexting. Some sexts are just sexy messages, while other sexts may include sexually explicit images that are nude or graphic in nature, and often highly personal. In general, sexting is perfectly legal between consenting adults. The grey area is around teen-to-teen sexting. Often, it’s explicit images that can land people in the most trouble, as evidenced in these legal cases:

  • In 2008, an assistant principal that was tasked to investigate sexting rumors at his school ended up being accused of possessing child porn when he was unable to transfer a photo from a student to his computer and instead had the student forward it to his phone. The case was thrown out before it got to trial, but the assistant principal still had to spend $150,000 in legal fees to clear his name.
  • In 2009, child pornography charges were brought against six Pennsylvania teens after three girls sent sexually explicit images to three of their male classmates.
  • In 2009, a 17 year old girl was charged with being an “unruly child” after sending nude photos of herself to her ex-boyfriend. The photos began circulating around school after the two had a fight.
  • In 2009, again in Ohio, a couple of teens were charged with contributing to the delinquency of a minor (a first degree misdemeanor) for possessing and possibly sharing nude photos of two other 15 year old classmates.
  • In 2013, three Virginia high schoolers that made cellphone videos of drunken sex acts with fellow teens and sharing the videos among themselves have been sent to trial for child pornography charges.
  • In 2014, a bizarre Virginia case is taking place, where a 17 year old student has been, ironically, sexually traumatized by the police in juvenile jail after he sexted an explicit video – presumably of himself – to his 15 year old girlfriend.
  • As of July 1, 2014 in Virginia, it is illegal to distribute a sexually explicit photo of someone else without their permission. Laws like this will most likely come into effect in other locations soon.
  • 2015: at least 100 high school and middle school students in Colorado traded nude photos of themselves in a “sexting ring.” Administrators have no idea how to proceed but think at least some students will be charged.

A lot of these issues are matters of state law, which could vary greatly from state to state. To find sexting legislation by state, check out the National Conference of State Legislatures (NCSL). From their site: “In 2012, at least 13 states introduced bills or resolutions aimed at “sexting” – where minors send sexually explicit or nude or semi-nude photos by cell phone. Four states – Hawaii, New York, Pennsylvania and South Dakota – enacted legislation in 2012. Since 2009, at least 20 states and Guam have enacted bills to address youth sexting.” All 50 states, however, have laws that protect minors from exploitation via sexually explicit images.

Q: Who “owns” a photo, and what can they do with it?

A: Once you send a photo of yourself with nudity to someone, that person could share it with anyone and everyone if they wanted to. They could photoshop it, make a meme out of it, or tweak that image however they wanted. Legally, if the sender is under 18, it would be considered exploitation, and the person that received and disseminated the image could be prosecuted, which is what happened in this 2010 case in the state of Washington.

Q: Sexting has obviously caused some problems for politicians, but how many problems could it cause for an ordinary person? What kind of paper trail could potentially haunt someone?

A: You’ve probably heard of Weinergate. Politician Anthony Weiner’s sexting scandals led to his resignation as a congressman in 2011 and affected his attempt to return to politics as candidate for mayor of New York City in 2013. How can sexting affect a non-celebrity? Regardless of whether employers or others can legally discriminate hiring or firing you based on sexy or nude photos, no one can un-see those photos.

Q: Could a company fire you or not hire you based on a sext conversation you had with someone else?

A: Depends. If you are sexting someone you work with and the company you work for has a policy against co-worker romance then legally it could be used as evidence to fire you and/ or the other person.

Getting caught sexting on the job can not only be embarrassing, in some cases you might even get fired or be pressured to step down from your position.

Q: Are there any phrases that should be avoided?

A: Think about it this way: a lot of things can be taken out of context and be manipulated to look a certain way. Someone might attempt to use what you’ve said or the images you’ve sent as blackmail, also known as “sextortion.”

Q: Could anything be construed as harassment down the road by a bitter ex?

A: Depending on what you have written, the other person could attempt to use laws against emotional distress and unwanted attention.

There has been a lot of concern over sexting and cybersex blackmailing and bullying in the news recently, and for good reason. More than a few young people have reported someone that has threatened to share the pictures with their family, friends, or co-workers unless they send money or more images.

Other general advice: know who you are talking to. Sometimes the person on the other end of the line isn’t who they say they are, or it could be someone else using that person’s phone or computer. Also, when you take a nude or semi-nude photo of yourself and send it to someone, they’re going to have that photo for life. FOREVER. Some people are okay with this, some people are not okay with this. Some people only send photos that exclude their face so that if the photo gets out somehow and is seen by others, it’s not obvious it’s them. A tattoo or mole could be a give away though. Ultimately, you will make your own choices about what’s best for you, but it’s always good to be aware of what could happen afterwards. For parents: the UK organization NSPCC has a helpful page devoted to talking to your kids about sexting. An informative documentary series to check out is MTV’s “Sexting in America: When Privates Go Public,” which can be watched online. The organization, A Thin Line, also gives practical advice and support to teens.

– Nikita