When Is Sexting a Crime a California?
Sexting means exchanging sexually explicit or nude pictures with a mobile device, most commonly a cell phone. Many states have specific laws prohibiting sexting with a minor, but not California.
Notably, sexting is not always illegal, such as when it occurs between two consenting adults, but it becomes a crime involving a minor under 18. It's common today for teenagers to use their cell phones to send or receive naked, sexually explicit pictures or videos, referred to as “sexting.”
As noted, California does not have specific laws making sexting a crime. Still, prosecutors will use other relevant statutes to file charges against someone, such as child pornography and other laws.
For example, California Penal Code 311 PC makes it a crime for someone to knowingly possess child pornography if they commit sexting with a minor and then save the sexually explicit images on their cell phone.
Further, subsection 311.3 PC makes it a crime for someone to knowingly develop, duplicate, or exchange any media depicting a minor engaging in the act of sexual conduct.
While “sexting” is used differently, it usually refers to sending or receiving sexually explicit electronic messages through email, texting, electronic messages, an app, or a webcam.
When a minor gets involved, such as saving an explicit image, the game changes, and you could face sexual-related charges. Let's review below the possible criminal charges you could face related to sexting a minor.
Penal Code 288.2 PC - Harmful Matter Sent to Seduce a Minor
California Penal Code 288.2 PC would make sexting with a minor illegal, even if the minor initiated the contact. At the same time, sexting between two minors is also illegal but rarely prosecuted.
In other words, PC 288.2 makes it illegal to send or distribute, using electronic communication, harmful matter to a minor with the intent to sexually gratify or seduce and arouse them. Some of the messages to minors that would be illegal include the following:
- sexually explicit pictures;
- pornographic video;
- text messages with suggestive or sexual content to arouse them;
- text messages to have sex with them.
Simply put, harmful matter is anything that offensively depicts sexual conduct. The prosecutor must prove the defendant knew the recipient was a minor to be convicted. For example, if an adult sexts a sexually explicit image to a minor, they could have Penal Code 288.2 PC charges filed against them.
Penal Code 311 PC - Child Pornography
Suppose you save an explicit photo of a minor you acquired through sexting. In that case, you could also face PC 311 charges for possessing child pornography.
Child pornography is any material depicting someone under 18 engaged in sexual conduct. If you are sent a photo or video of child porn, saving it is also illegal.
California's child pornography laws make it a crime to possess or send images of minors that are obscene, that show them engaged in sexual acts, or that show their genitals or rectal area for sexual gratification.
Suppose you send or receive nude or sexually explicit images of a minor through sexting. In that case, the behavior can fall under this statute, which applies to adults who sext images to a minor. Sometimes, sexting can be prosecuted under federal laws, such as the following:
- 18 U.S.C. § 2252 - federal child pornography laws;
- 18 U.S.C. § 2251 - sexual exploitation of children.
These statutes can be used when someone attempts to induce, entice, or persuade a minor to engage in sexual acts to make a video or other images.
Penal Code 646.9 PC - Stalking – Penal Code 646.9 PC
If you send repeated explicit messages to somebody with the intent of annoying or harassing them, you could face charges of stalking under PC 646.9.
This statute covers situations where you send explicit messages with the intent to “harass” or “threaten” someone, and if it causes them to fear for their safety, you could face stalking charges. If you send an obscene message intending to annoy someone, you could face charges of annoying phone calls under Penal Code 653m PC.
What Are the Penalties for Sexting in California?
If convicted of sexting, the penalties can be severe and depend on the violated statute. Sometimes, prosecutors will file sexting charges as felonies, and you might be required to register as a sex offender under Penal Code 290 PC.
PC 288.2 sending harmful matter to a minor is a “wobbler” offense that can be charged as a misdemeanor or a felony, depending on the case details and the defendant's criminal history.
- A Penal Code 288.2 PC misdemeanor carries one year in county jail and up to a $1,000 fine;
- Felony charges of sending harmful matter to a minor carries up to five years in prison.
Child pornography is also a “wobbler,” and you can face registration as a sex offender.
- A misdemeanor child porn can result in up to one year in jail and a $1,000 fine.
- A felony child pornography can result in prison for up to five years and fines of up to $100,000 per charge.
Sending annoying messages by phone is a misdemeanor that up to six months in county jail and up to a $1,000 fine. Stalking is another wobbler that carries one year in jail and up to a $1,000 fine for a misdemeanor. A felony stalking charge can result in up to five years in prison.
What About Registration as a Sex Offender?
A felony conviction will result in the requirement to register in California's sex offender registry under Penal Code 290 PC.
California law 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 for low-level offenses, such as indecent exposure;
- Tier two crimes require registration as a sex offender for ten to 20 years for crimes such as lewdness with a minor;
- Tier three covers most serious sex offenders and requires lifetime registration for crimes such as rape and sex crimes against children.
The courts determine your sex offender tier registration based on the type of conviction and the circumstances of the case.
Suppose you fail to register as a sex offender. In that case, it's a separate crime that could lead to your arrest and prosecution for a felony or misdemeanor offense.
If you're facing criminal charges related to sexting, you're worried about what will happen next and the consequences of a criminal conviction. Remember, you are innocent until proven guilty.
We must review the details of your sexting allegation to determine the best defense strategy. You can contact our law firm for a free case evaluation by phone or using the contact form. The Hedding Law Firm is located in Los Angeles, California.