When Is Sexting Considered a Crime a California?
Sexting means exchanging sexually explicit or nude pictures through electronic communication, such as a cell phone. Unlike many states, California does not have a law explicitly targeting unlawful sexting.
Teenagers routinely use their cell phones to send or receive naked, sexually explicit photographs and videos, called “sexting.” There is a close association between sexting and child pornography and other related statutes.
In most cases, “sexting” refers to sending or receiving sexually explicit electronic messages through email, texting, an app, or a webcam.
Sexting is typically legal among consenting adults, but it becomes a crime once a minor under 18 gets involved. In other words, you can face criminal charges if the sexting is with a minor, saving an explicit photo, or sending it to harass or threaten someone.
As noted, there is no specific law making sexting a crime, but California Penal Code 311 PC prohibits anyone from knowingly possessing child pornography. For example, an adult may commit sexting with a minor and save sexually explicit images on their cell phone.
It's also a crime for anyone to develop, duplicate knowingly, or exchange media showing a minor engaging in sexual conduct.
In this article by our California criminal defense lawyers, we will review when sexting is illegal, the potential charges and penalties you can face related to sexting, the possible criminal penalties, and the legal defenses.
Penal Code 288.2 PC - Sending Harmful Matter to Seduce a Minor
As noted, sexting with a minor is illegal and between two minors, regardless of whether they gave consent. Under Penal Code 288.2 PC, it's a crime to send, distribute, or offer, using electronic communication, harmful matter to a minor with the intent to sexually gratify, seduce, or arouse. This means it's illegal to do any of the following acts:
- Send a minor a sexually explicit picture or pornographic video,
- Send text messages to a minor with sexual content hoping to have sexual activity with them or to arouse sexually.
The harmful matter is any material offensively depicting sexual conduct. To be convicted, the prosecutor must prove you knew the recipient of the material was a minor. This statute applies to an adult who sexts sexually explicit pictures to a minor.
Penal Code 311 PC - Child Pornography Law
Perhaps you saved explicit photos of a minor that you received through sexting? In that case, you could face possessing child pornography charges.
California law describes child porn as material depicting somebody under 18 engaged in sexual conduct. Saving and storing child porn is illegal.
This statute prohibits possessing or sending obscene images of minors that show them engaging in sexual activity and showing their genitals or rectal area for sexual purposes.
In other words, in cases where you send or receive nude or sexually explicit images of a minor by sexting, you could be criminally charged under this law if you are an adult sexting a minor.
What about federal law? In some cases, sexting could be charged under federal laws that have severe penalties if you are convicted.
Federal child pornography laws are covered under 18 U.S.C. § 2252 and sexual exploitation of children under 18 U.S.C. § 2251. These statutes can be used to charge someone when they attempt to induce, entice, or persuade a minor to engage in sexual acts to make a video or other images.
Stalking and Annoying Phone Calls
Perhaps you sent explicit messages to somebody with the intent of annoying or harassing them? In that case, you could face charges of stalking or making annoying phone calls under California law:
- Annoying phone call charges apply when you send an obscene message to somebody intending to annoy them. This statute includes emails, messages, and texts sent by phone and is defined under California Penal Code 653m PC.
- Stalking under Penal Code 646.9 PC applies if you send explicit messages with the intent to “harass” or “threaten” somebody that causes them to fear for their safety.
What Are the Penalties for Sexting in California?
The legal penalties for sexting will vary depending on the circumstances. In some cases, the prosecutor will file as a felony which could result in mandatory registration as a sex offender.
In California, sending harmful matter to a minor is a “wobbler” that can be charged as either a misdemeanor or a felony, depending on the details of the case and the defendant's criminal history. If Penal Code 288.2 PC is a misdemeanor, you could be facing:
- One year in county jail, and
- A fine of up to $1,000,
- Informal summary probation.
If sending harmful matter to a minor was a felony, you face up to five years in prison.
Child pornography is also a “wobbler,” and you will face the sex registry. A misdemeanor child porn case carries up to one year in jail and a $1,000 fine. A felony charge carries up to five years and fines of up to $100,000 per charge.
Criminal charges of annoying messages by phone are also a misdemeanor that carries up to six months in county jail and up to a $1,000 fine. Stalking is also a wobbler with the same misdemeanor penalties, but a felony stalking charge can result in up to five years in prison.
What About Sex Offender Registration?
Perhaps you are an adult convicted of any felony offense listed above? In that case, you will be required to register in California's sex offender registry as defined under Penal Code 290 PC, which now has a three-tier system under Senate Bill 384 that took effect on January 1, 2021:
- Tier One crimes require registration as a sex offender for five to ten years, including crimes like indecent exposure and other low-level offenses.
- Tier Two requires registration as a sex offender for ten to twenty years for a crime like lewdness with a minor under 14.
- Tier Three is reserved for the most serious sex offenders and requires lifetime registration for crimes like rape, sex crimes against children ten and younger, and repeated sex offenses.
If you fail to register when required, you could be prosecuted for a separate misdemeanor or felony crime.
Cron, Israels & Stark is located in Los Angeles, California. We provide a free case review by calling (424) 372-3112 or using the contact form.