“Sexting,” as it is most commonly referred to, is the practice of sending nude or revealing images to another person or people from a mobile phone, tablet, or computer. The most common form of transmission is via text messaging, hence the phrase sexting. In California, some instances of sexting may constitute a crime, depending on the content of the message, and/or the intended recipients.
Consensual Sexting Between Adults
Sexting is perfectly legal as long as both parties involved are consenting adults. This means you can send your boyfriend/husband or girlfriend/wife a nude or revealing image without any laws being broken.
What you can’t do, however, is share any images your partner sends you online or with other people without your partner’s express permission. Sharing nude or revealing photos someone consensually sends you without permission may be considered “revenge porn,” and California has laws against it.
California’s “Revenge Porn” Law
“Revenge porn” is when a person initially consents to sexual images being taken of him or her with the expectation that those images will be kept private, then, another party shares those images without the subject’s consent.
The legal definition of revenge porn has five parts:
- It must involve an image of an intimate body part of another identifiable person (genitalia, anus or breast), or an image of that person engaged in sexual intercourse, sodomy, oral copulation or masturbation.
- One party intentionally distributes that image.
- There was an understanding between the distributor and the subject of the photo that the image would remain private.
- The distributor knows or would reasonably expect that the distribution of the image will cause the person serious emotional distress.
- The subject of the photo suffers serious emotional distress.
California officially made revenge porn illegal in 2013, legally classifying it as nonconsensual pornography.
The most common instances of revenge porn happen when a couple breaks up, and one or both parties then share what were supposed to be private images online or with friends in an attempt to shame and/or humiliate their former partner.
Ready To Speak With An Attorney?
Any adult who sends unwanted or unsolicited messages containing nude or revealing pictures to another adult without his or her permission could be charged with sexual harassment or sued in civil court for causing emotional distress or other damage.
Sexting And Child Pornography Laws
If you send a sexting message to or receive a sexting message from someone under the age of eighteen, it’s illegal. Under California law, it is illegal to possess, produce, or distribute “obscene matter” depicting children under eighteen years old.
If a minor sends an adult a sexually explicit image of themselves, and the adult keeps it and/or shares it with others, that would qualify as possessing and/or distributing child pornography. The same is true if an adult takes a nude or revealing picture of a minor to keep or share.
The only instance where there is some leeway is if both parties are minors. If two seventeen-year-olds are sexting each other, and their messages are discovered, it is very unlikely that they will be prosecuted under California’s child pornography laws.
How To Avoid Criminal Charges
The best way to avoid criminal charges for either nonconsensual pornography (revenge porn) or child pornography is not to take or request sexually explicit images.
Even in entirely consensual situations, it’s far too easy to send or share those images with the wrong people accidentally. And once those images are out, it’s nearly impossible to get them removed from every corner of the internet.
If you are charged with a crime relating to sexting, you should contact an experienced criminal defense attorney immediately. California criminal courts are notoriously harsh and unforgiving to those convicted of sex crimes and crimes involving children.