As of July 1, 2022, 23 states in the U.S. do not have laws specific to teen sexting. Our research shows that approximately 14% of middle and high school students have sent explicit images to others, while about 23% have received similar images from others. Likewise, a 2022 meta-analysis of 28 studies published between 2016 and 2020 found that 19% of youth had sent and 35% had received explicit messages (some of these studies broadly defined sexting to include images and text). Taken together, this shows that a non-negligible number of teens are participating in sexting.
Why Do States Need a Sexting Law?
States that do not have a specific sexting law often rely on existing statutes when dealing with teen sexting. All states, for example, have child pornography or child exploitation laws that prohibit sending, receiving, or possessing images of a sexual nature of a minor. The specific details vary by state, but most are modeled after federal legislation that defines child pornography as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). What exactly constitutes “sexually explicit conduct” can be subject to debate, but it doesn’t necessarily just mean “naked.”
The purpose of these laws, of course, is to protect minors from being exploited by others (most notably, adult predators). The problem is that these tools are uncompromising and indiscriminate and can be misapplied to situations that don’t warrant their application. In Oregon, for example, anyone (regardless of age) who is found to be in possession of sexually explicit images of a child is subject to a 70-100 month mandatory minimum sentence and would be required to register as a sex offender (ORS 163.688). In 2017, the Supreme Court of Washington ruled that child pornography statutes apply “to any person who disseminates an image of any minor, even if the minor is disseminating a self-produced image” (emphasis added).
Also, and importantly, the age of consent in a particular state is irrelevant when it comes to federal child pornography laws. For example, in my state of Wisconsin, the age of consent is 16, and an individual is an adult in the eyes of the criminal court at the age of 17. Nevertheless, federal law would not allow a 16- or 17-year-old in Wisconsin to share explicit images of him- or herself with others. This discrepancy could lead to a situation where a teen is both the victim and the offender in a sexual exploitation case (as was the case in a 2015 North Carolina incident).
In short, states need a specific sexting law to clarify the types of behaviors they are seeking to regulate, and to ensure that appropriate and reasonable sanction is applied to those who warrant it. Sexting laws can also provide for educational alternatives for instances that do not rise to the level of criminal behavior.
Variety of State Sexting Laws
Among states that have a sexting law, there is wide variation in how the behavior is supposed to be handled. Some states allow minors who sext to be dealt with outside of the formal justice system, while others specify harsh punishments that include felony charges. In Colorado, for example, “exchange of a private image by a juvenile is a civil infraction and is punishable by participation in a program designed by the school safety resource center or other appropriate program addressing the risks and consequences of exchanging a sexually explicit image of a juvenile or a fine of up to fifty dollars, which may be waived by the court upon a showing of indigency.”
Some states allow minors who sext to be dealt with outside of the formal justice system, while others specify harsh punishments including felony charges
In Nebraska violating the state’s sexting law for the first time is a Class I misdemeanor while subsequent infractions are a Class IV felony. Kansas law states: “It shall not be unlawful for a person who is less than 19 years of age to possess a visual depiction of a child in a state of nudity who is 16 years of age or older.” In Nevada, minors who send sexually explicit images of themselves to others are considered a child in need of supervision for the first violation.
At least thirteen states have provisions to divert minors who sext outside of the formal justice system. For example, the New Jersey Legislature permits juveniles who are criminally charged for sexting to participate in a remedial education or counseling program as an alternative to criminal prosecution. Texas specifies that the minor may be sentenced to community supervision, with a condition of fulfilling an educational program that is paid for by the defendant’s parents.
Sexting Laws Provide Options
Overall, we feel it is important to review the particular circumstances of each sexting incident and respond thoughtfully and reasonably with an eye toward education and support. While nearly everyone understands that exchanging intimate images is a risky behavior, rarely does (nor should) it rise to the level that warrants criminal justice involvement. It is in no one’s best interest to criminalize the consensual and voluntary exchange of private intimate images within the confines of an existing romantic relationship. The situations to may warrant justice system involvement (e.g., threats, coercion, violation of privacy) should be clarified in law so that kids don’t experience long-term consequences as a result of unreasonable responses to developmentally normative (even if risky) behaviors.
See below for a table of various attributes of laws across the United States as of the summer of 2022. For more information about each state’s law, check out our interactive state sexting law map where you can click on each state and get all of the details of their sexting law.
Image: Charles Deluvio (unsplash)