What You Should Know About California's Sexting Laws
Sexting is generally described as exchanging sexually explicit or nude photographs using a mobile device. Many states have enacted specific laws targeting sexting and minors, but not the state of California.
Teenagers frequently use their cell phone or tablet to send or receive naked, sexually explicit pictures and videos of themselves, which is commonly known as “sexting.”
However, sexting doesn't always involve teenagers and it's important to understand the connection between sexting and child pornography laws.
It should be noted that sexting is typically legal between consenting adults, but if a minor is involved, then a crime has occurred. Sexting with minors can be prosecuted under California's child pornography and exploitation laws, including:
- California Penal Code 311 makes it a crime to knowingly possess child pornography if defendant sexts with a minor and saves sexually explicit images of their mobile device.
- California Penal Code 311.3 makes it a crime to knowingly develop, duplicate, or exchange any type of media depicting someone under 18 years of age engaging in an act of sexual conduct.
- California Penal Code 288.2 criminalizes the act of sending messages of images to a minor if it was intended to sexually arouse or seduce them. This would apply if the message was sent by text, email, and other methods of communication.
Put simply, sexting with a minor in California is a crime and includes the acts of an adult, or a minor, engaging in sexting with a minor. It should also be noted that it's not a defense for a minor to give consent to the sexting.
To give readers a better understanding of what potential charges could be filed as a result of illegal sexting, let's review the various California laws below.
Child Pornography – Penal Code 311
California's child pornography laws prohibit possessing or sending images of minors that are obscene or show them engaged in sexual conduct. This includes any type of sexual activity, along with showing their genitals or rectal area for the purpose of sexual gratification.
Sending and receiving of nude or sexually explicit images of a minor through sexting will typically fall under this statute, which applies to adults and minors who sext images to a minor.
Sexual Exploitation of a Minor – Penal Code 311.3
If you knowingly develop, duplicate, print, or exchange any material showing a minor engaged in an act of sexual activity, you can be charged with the serious sex crime offense of sexual exploitation of a child.
Recall that sexting involves exchanging an image from the sender to the receiver. If the image that was sent was a minor, then the offense would fall under this statute.
Sending Harmful Matter to Seduce Minor – Penal Code 288.2
It's also a crime for to send or distribute, or offer to, by using electronic communication any harmful matter to a minor with intent to both sexually gratify or appeal to the person or minor and seduce or arouse them.
Harmful matter is described as any anything that depicts sexual conduct in an offensive way. In order to be convicted, it must be proven defendant knew the recipient of the material was a minor. If an adult sexts a sexually explicit picture to a minor, they could face criminal charges under this statute.
Annoying Phone Calls – Penal Code 653m
Illegal sexting could be charged under this statute if the intent is to annoy the recipient. PC 653m makes it a crime to make repeated or harassing phone calls that use obscene or threatening language. Annoying phone calls can apply to text messages, email, or other forms of communication and it's a “wobbler” offense.
It should be noted that just a single incident of harassing by phone is sufficient to support a criminal charge of annoying phone call, but it will typically take multiple phone calls to support a criminal charge under this statute.
Sexting and Federal Law
In some cases, sexting can be a crime under federal law. Prosecutors have several statutes they can use to pursue criminal charges. It's a federal crime to use a computer or electronic device to send or receive:
- Obscene depiction of a minor engaged in sexually explicit conduct
- Image of a minor engaging in sexually explicit conduct, or
- Material containing child pornography
Federal child pornography laws are defined under 18 U.S.C. § 2252. Sexual exploitation of children is defined under 18 U.S.C. § 2251 and described as making an attempt to induce, entice, or persuade a minor to engage in sexual acts for the purposes of making a video, picture or other images.
What are the Penalties for Sexting?
The penalties for unlawful sexting will always depend on how the offense is formally charged. Some sexting related charges are “wobblers” that can be charged as either a misdemeanor or felony crime.
How the prosecutor decides to file charges will depend on the facts of the case and defendant's prior criminal record.
If you are convicted of a misdemeanor, the penalties include up to one year in a county jail, a fine up to $1,000, and summary probation.
If convicted of a felony, the penalties include 3 to 5 years in a California state prison, a fine up to $10,000, and formal probation.
California Sex Offender Registry
An adult who was convicted of any felony offense listed above will be required to register in California's sex offender registry defined under Penal Code 290.
This registration is a lifetime requirement which means that while you live in California, you must register as a sex offender for the rest of your life unless you pursue legal relief from this requirement.
Failing to register as a sex offender is a crime that can lead to your arrest and prosecution for a felony or misdemeanor crime. The exact level of charge will depend your prior conviction that resulted in the registration requirement.