Sexting in and of itself is not a bad thing. Adding a dash of creativity and excitement can spice up your relationship. However, it is crucial to understand the nuances of California law regarding sexting. The state is serious about sexting with children. What begins as a private conversation could result in jail time, hefty fines, or possibly being classified as a sexual offender. Things worsen if your sexting turns into harassment, stalking, or privacy issues. For this reason, when you sext, make sure all parties are consenting adults and maintain those boundaries to avoid any potentially disastrous consequences. This article explores circumstances under which sexting is a crime under CA law.
What is Sexting Per California Law?
California has clear regulations regarding sexting. It all depends on who is involved.
Adults who are willing can openly share these explicit pictures and messages. Sexting turns into a criminal activity when a minor is involved. California law shields minors from situations like these. Therefore, this is applicable even if they consented. It is against the law to send, receive, or own naked photos of minors via sexting.
Minors, too, are not immune to the law. They can face criminal penalties when they send texts to one another.
Furthermore, if someone uses sexting to harass or threaten another person, that falls under California's invasion of privacy and stalking laws, adding another layer of legal trouble.
To be considered valid, consent requires the voluntary participation of every activity. This agreement requires essential elements to be achieved, namely:
- The decision to take part must be of free will
- There should be no use of coercion, compulsions, or manipulation.
Consent is an ongoing process that applies at every stage of the interaction. If either party feels uncomfortable or wants to revoke their consent, consent is assumed to have been withdrawn. This means you should stop immediately.
Possession of Explicit Material Obtained From Minors
Investigators will look into whether you saved explicit photos of a minor or received them through sexting. Prosecutors will analyze digital evidence, like your electronic devices and messaging history, to figure out how you received explicit material involving a minor. The findings will also explain whether you kept or shared the material.
Saving explicit photos of a minor obtained through sexting can lead to serious legal trouble, including charges related to possessing child pornography. Similarly, depending on the situation, you could face consequences for distributing or receiving sexually explicit material involving a minor.
Per Penal Code 311, any visual representation of sexually explicit behavior involving a juvenile is considered child pornography. It encompasses any kind of media that depicts minors in sexual poses or actions. This includes pictures, movies, or digital images. Furthermore, it is also a crime to manufacture, distribute, own, or access child pornography.
Sending Harmful Material to a Child
You will also face prosecution even if the content does not directly involve the child. Sharing explicit images, videos, or other pornographic materials with them is a crime. Specifically, you will face charges under Penal Code 288.2.
Penal Code 288.2 addresses sending sexually explicit material to a child.
The burden of proof for prosecutors is to demonstrate that you've sent sexually related content to the child. They must show that you sent, showed, or offered to show it to the child. Most importantly, they must show that you were aware, or reasonably should have been, that the recipient was a minor.
The prosecution must persuade the judge or jury that you did not only use the information to arouse the minor or yourself. They must demonstrate that you planned to coerce the child into engaging in sexual behavior, even if it was just a light sexual touch. The degree of explicitness in the content determines how harsh the penalty will be.
When you send sexually explicit material to a minor, the law is not solely concerned about the arousal this material could cause. It also prohibits using this material to groom or coax a minor into sexual activity.
That is where "seduction" comes in. Prosecutors must show that you intended to use the explicit material not only for sexual gratification but also to influence the minor into some form of sexual act, whether it is intercourse, oral copulation, or even basic sexual contact.
Sexting to Threaten, Harass, or Annoy
Sometimes, people deliberately threaten, harass, or offend others by using sexual texts, photographs, or videos. They achieve this by sending communications to frighten, intimidate, or upset the recipient.
Threats could include expressing the desire to do harm or damage. However, harassment is defined as sending inappropriate sexual content again and again against the victim’s insistence on stopping.
Sending someone unsolicited, explicit texts or photographs repeatedly to annoy or irritate them is considered annoying behavior. If prosecutors prove annoyance, you risk facing additional charges for violating Penal Code 653m.
Penal Code 653m makes it an offense to intentionally annoy, harass, or threaten someone else with a phone or electronic device. This includes:
- Speaking to the victim indecently
- Threatening to cause them harm or damage their property, or
- Calling them repeatedly to irritate or harass them.
If you allow someone else to use your phone or other device for these activities, you risk facing prosecution for a Penal Code 653m violation.
Stalking and its Connection to Sexting
Stalking occurs when someone repeatedly and uninvitedly focuses on another individual, similar to an obsession. It is an extremely frightening experience. Stalking involves actions that gradually make the victim feel uneasy and unsafe. It goes beyond a casual greeting or coincidence. Gradually, these actions take several forms. They include:
- The stalker pursuing the victim
- He/she bombards them with unsolicited calls or messages, or
- The stalker violates the victim’s privacy by tracking their online activities.
Most stalkers do this to frighten and exert control over the victim, thereby inducing fear in the victim.
Stalking is a different crime from making annoying phone calls. However, they share similar characteristics, namely making unrelenting phone calls, messages, or emails, even after the victim expressly asks them to stop.
Sometimes, stalkers appear in person at the victim's house, place of employment, or other frequented locations. In addition, stalkers use technology to locate their target or send unsolicited presents and threats. If the prosecution proves you engaged in these activities, you could face penalties outlined under Penal Code 646.9.
Consequences Imposed on Sexting Offenders Upon Being Found Guilty
The repercussions of sexting vary depending on your circumstances. California prosecutes these instances under broader crimes such as:
- Distributing harmful material to a minor — It is a crime under Penal Code 288.2
- Child pornography — It is a violation of Penal Code 311
- Stalking — It is a violation of Penal Code 646.9
- Annoying or harassing electronic communications — It is a crime under Penal Code 653m
The problem is that because these statutes are "wobblers," prosecutors may choose to prosecute you with a misdemeanor or a felony based on the circumstances of your case. They consider the following criteria to determine which charges to pursue:
- Age of participants — You will likely have a more serious case if the content is explicit or if a minor participates, particularly a very young individual.
- The messages' contents — Sharing sexually suggestive content is one thing, but sharing explicit content can make charges far more severe.
- Your past criminal activity — Prior transgressions, particularly sexual acts, can result in a felony charge and conviction.
A misdemeanor conviction carries:
- A potential six months to one year in county jail,
- A fine of up to $1,000, and
- Community service
However, the possible repercussions increase significantly if your case is prosecuted as a felony. You could face:
- Formal probation
- A significant fine of up to $10,000 and
- 3 to 5 years in state prison
It could be necessary for you to register as a sexual offender in certain situations, which can have long-term repercussions. Individuals convicted of felony violations could be required to register as sex offenders.
The seriousness of the offense and the estimated risk of reoffending determine the levels that California's sex offender registration system assigns. Even though registration is not the typical punishment for sexting cases, it could apply in some situations.
California’s sex offender registry has three categories: "Tier 1," "Tier 2," and "Tier 3."
The lowest risk category, Tier 1, requires registration for ten years. Misdemeanors or less serious felonies involving sexting, that is, incidents involving older teenagers or less explicit content, usually fall under this category.
Registration is valid for 20 years for adults. Tier 2 is a medium-risk category. Here, you will come across felony sexting cases with somewhat explicit content or a broader variety of minors' ages involved.
The highest-risk offenders reside in Tier 3, where offenders must register for life. This level is only applicable to the most serious sexual offenses. Even felonies, including sexting, are unlikely to fall under this category. In most cases, repeat offenders or those who use violence to commit felonies fall under this category.
Consequences on Juvenile Offenders
California has a two-pronged approach that takes into account both:
- The potential harm and
- The reality of addressing minors who sext.
For example, consider a letter or photo exchange between two teenagers. The situation becomes more serious the younger they are and the more explicit the information. Spreading these texts or images to others, especially adults can significantly increase the possible repercussions. The judicial system in California does, however, recognize that minors are still learning how to navigate challenging social situations. The juvenile court intervenes in this situation.
The juvenile court usually hears cases involving teens accused of sexting. Rehab takes precedence over punishment in this case. Judges could impose repercussions rather than harsh sentences to help the children understand the seriousness of their conduct and steer clear of them in the future. These repercussions could consist of:
- Counseling sessions — A therapist can provide advice on how to comprehend the risks of sexting and how to establish healthy communication skills.
- Curfews — Tighter curfews could prevent people from using social media after midnight when sexting is more common.
- Community service — Teens can evaluate their behavior and contribute constructively to their community by participating in community service.
Civil Implications
Recall that the effects of sexting go beyond the person who sent it. Because of shared content, victims could experience psychological pain, social embarrassment, or even cyberbullying. The court system is aware of this harm. Victims of sexting, particularly minors, occasionally bring civil lawsuits against the alleged offender. These legal actions could ask for damages for:
- Emotional distress — Anxiety, shame, and despair are among the psychological effects of sexting.
- Additional damages — Shared sexting content may cause reputational damage or missed opportunities for school and work.
Revenge Porn and Sexting
Retaliation porn and sexting frequently go hand in hand. While sexting can begin innocently, especially when it comes to teenagers, it can quickly turn into revenge porn. Once exchanged in confidence, explicit images or messages can spread maliciously and without the victim’s permission.
Retaliation porn can have long-lasting and severe effects on the victim. He/she experiences an incredible emotional toll that causes embarrassment, nervousness, and even depression. Social repercussions can be just as dire. Threats of bullying, social exclusion, and damage to an individual’s reputation can materialize.
The way revenge porn undermines the victim’s control over formerly private images or chats is what makes it so damaging. It becomes difficult to remove them once they are on the internet. The victim’s potential for future relationships, job advancement, and general mental health all suffer as a result. That is why revenge porn results in charges under Penal Code 647(j)(4).
Prosecutors aggressively pursue revenge porn charges under Penal Code 647(j)(4) because of the potential harm they have on victims. Like every legal issue, some requirements must be fulfilled to secure a conviction, namely:
- Private sexual image — The image or video must show nudity or a sexual act to qualify as private. This means the image or video should show an intimate part of the body of an identifiable person. This could be the victim’s genitals, anus, or female breasts. Alternatively, the material could be of the victim engaged in oral copulation, sexual intercourse, sodomy, sexual penetration, or masturbation.
- Non-consensual disclosure — Prosecutors should show you shared the photos or videos without the victim’s approval, even if they were first shot with the victim’s authorization. Since trust is a two-way street, this regulation ensures that private exchanges stay that way.
- Prosecutors must prove your intent to distribute to cause harm — This entails proving that you shared these photos or videos deliberately to embarrass the victim, cause emotional pain, or harm their reputation. It must also be evident that the victim suffered emotional damage.
- Identifiable person — It must be evident that the victim is in the picture or video.
There are instances in which you would be found not guilty of revenge pornography. These include:
- Consent to distribute—If the victim allowed you to share the photos with someone or a specific platform, they could have ended up elsewhere. This could make the case's "non-consensual disclosure" element more difficult to handle. However, the permission should be free and not coerced.
- Unintentional disclosure — It is possible that you sent the pictures to the incorrect individual by mistake. Refuting "an intention to inflict harm" could be possible if you can demonstrate this, for example, using recipient information and timestamps. Here, the emphasis would be on an honest error rather than malevolent intent.
- Reporting illegal activity — Consider extremely unsettling, like evidence of child sex abuse. The law acknowledges the critical need to expose these acts. In those cases, sharing private photos as proof is essential to holding offenders accountable.
- Following a court order — There are instances when you must assist the legal system. You must cooperate with a court subpoena or order to submit evidence, including personal photos.
Keep in mind that revenge porn is dependent on malicious intent.
Penalties for Revenge Porn
Revenge porn is a misdemeanor violation. It is punishable by:
- A jail sentence of up to 6 months and/or
- A maximum fine of $1,000
These penalties could increase if the following issues are true:
- You have prior convictions of revenge porn
- The victim was a child
If so, your penalties increase to:
- A jail sentence of up to one year and/or
- A fine of up to $2,000
Find a Criminal Defense Attorney Near Me
Sexting could be an exciting experience. However, it is essential to realize that it is hard to take it back once something is out there. Think through the possible consequences before sending the picture. What begins as a lighthearted snapshot could become an unanticipated cause of worry.
If you face sexting charges, you should seek advice from an experienced criminal defense lawyer. Experienced attorneys can clarify your rights, evaluate your situation, and recommend the best course of action. Call the Leah Legal team at 818-484-1100 for further assistance regarding sexting or related charges in Van Nuys, CA. Our team is ready to take up your case.