Sending nude photos, explicit videos, or flirtatious messages electronically is typically legal in California between consenting adults. However, it's crucial to understand that sexting can lead to serious criminal charges if one of the participants is a minor or if it escalates to stalking, harassment, or invasion of privacy.
Sexting is normally described as exchanging sexually explicit pictures using a mobile device, but it also includes stalking and harassment. When one of the people involved in the sexting is a minor, it could lead to criminal charges.
There are also a number of other acts associated with sexting that can be charged as a crime, such as saving nude images of a minor, gathered by sexting, to a smartphone or computer, and sexting to annoy, threaten, or harass a person.
It should be noted, however, that California doesn't have specific statutes covering sexting offenses; rather, prosecutors will use closely related offenses. Teenagers often use their cell phones to send sexually explicit pictures or videos, which is why it became known as “sexting.”
It should also be noted, however, that sexting does not always involve teenagers sending nude pictures of their cell phones. Thus, readers should know the direct connection between sexting and California's child pornography laws. Sexting that occurs between consenting adults is legal, but the moment a minor becomes involved, it's a crime.
Sexting and Child Porn Laws
If someone has been accused of sexting with a minor, prosecutors will often pursue the case under California's child pornography and exploitation laws:
- Penal Code 311 PC makes it illegal to possess child pornography. Often, when a defendant is sexting with a minor, they will save sexually explicit pictures or videos on their mobile device.
- Penal Code 311.3 PC makes it illegal for anyone to knowingly develop or exchange any form of media that depicts a minor under 18 years old who is engaging in sexual activity.
- Penal Code 288.2 PC harmful matter sent to seduce a minor law. This statute makes it illegal to send messages or images to a minor if the intent is to arouse or seduce them sexually. This law applies if the message is text, email, or electronic.
Sexting with teenagers and other minors is a serious sex crime. It does not matter if the minor gave consent to the sexting because they are not old enough to give consent under California law.
The child pornography and sexual exploitation of a child laws in California under PC 311 make it a crime to possess or send obscene images of minors that depict them engaging in sexual activity. This statute also prohibits transporting, duplicating, printing, advertising child porn, or persuade minors to make child pornography images.
This not only includes showing minors engaging in sexual conduct but also showing their genitals or rectum for sexual gratification. If you send or receive sexually explicit or nude images of a minor through sexting, then the crime will normally be filed under California Penal Code 311 PC.
Sending Matter to Seduce a Minor
California Penal Code 288.2 makes it a crime to send, distribute, or exhibit harmful material to minors under 18 years old with the intent to both sexually gratify or appeal to the person or minor and seduce or arouse them.
Under California law, any material is considered “harmful” when it offensively depicts sexual conduct, a reasonable person would conclude it lacks serious value to a minor, and an average adult would find the material to be appealing to a prurient interest. Understanding these legal definitions is crucial to staying on the right side of the law.
For the prosecutor to obtain a conviction, it has to be proven beyond a reasonable doubt that the defendant knew the person receiving the harmful material was a minor.
To be convicted, it must be proven that the defendant knew the recipient of the material was a minor. If an adult becomes involved in sexting a sexually explicit picture to a minor, they could face criminal charges under Penal Code 288.2 PC.
PC 653m Annoying Phone Calls
California Penal Code 653m PC makes it a crime to make repeated or harassing phone calls or calls using obscene or threatening language. Annoying phone calls can apply to anyone using text messages, email, or other electronic communication.
PC 653m is another California “wobbler” offense that could be charged as a misdemeanor or felony. The most common types of annoying phone calls that can be considered a crime include:
- Phone calls or communication using obscene language,
- Phone calls or any communication involving threats,
- Excessive or repeated phone calls.
It's important to note that a single call of harassment or sexting is typically not enough to support criminal charges under this statute. Repeated phone calls or other communication are typically required.
Federal Laws on Sexting
There are situations where a sexting case could be pursued under federal law. Federal child pornography laws are described under 18 U.S.C. § 2252, but prosecutors could use a variety of federal statutes to file criminal charges.
For instance, the Exploitation of Children Act of 2003 makes it a federal crime for someone to use a computer to send or receive any child pornography material or obscene images of a minor participating in sexually explicit behavior.
The federal crime of sexual exploitation of children is defined as 18 U.S.C. § 2251 and is attempting to induce or persuade a minor to engage in sexual activity to make a video or pictures. 18 U.S.C. 2261A makes federal stalking and cyberstalking electronically a federal offense.
Penalties for Sexting in CA
If you are convicted of sexting in California, the penalties will always depend on which statute the crime was charged under. Prosecutors use some statutes in sexting-related charges that are “wobblers,” which means the case could be filed as either a misdemeanor or felony crime, depending on the circumstances and the defendant's criminal history.
Their decision on how to file the sexting case will typically depend on the specific facts of the case and the defendant's criminal history. If you are convicted of a misdemeanor sexting case, it's punishable by:
- Up to one year in county jail,
- A fine up to $1,000, and
- Informal summary probation.
If you are convicted of a felony-level sexting case, it's punishable by:
- 3 to 5 years in a California state prison,
- A fine up to $10,000, and
- Formal felony probation.
Sex Offender Registration
If you are convicted of any statute listed above for sexting, you will be required to register as a sex offender under California Penal Code 290 PC. This is a lifetime registration, meaning you will have to register annually at your local police station as long as you live in California—unless you pursue legal relief from this requirement.
If you fail to register as a sex offender, it's a separate misdemeanor or felony offense, depending on your prior sex crime conviction. If you have been accused of sexting in California, contact our experienced California criminal defense lawyers for an initial consultation.
Cron, Israels & Stark is a top-rated criminal defense law firm that represents clients throughout Southern California, including LA, Orange, Ventura, Riverside, Santa Barbara, and San Bernardino counties.
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