In the age of smartphones and social media, “sexting” has become popular among teens and even some adults. While the name derives from texting, it actually involves sending, receiving or forwarding sexually suggestive or explicit pictures or videos. While teens may view sexting as a harmless way of flirting or expressing intimacy, it can have severe legal ramifications, even for minors.

Laws vary by state, but they generally prohibit sharing or possessing sexually explicit images or videos of minors. Depending on the circumstances, this could be classified as the production, distribution or possession of child pornography.

In Texas, the crime of electronic transmission of certain visual material depicting minors can consist of either of the following:

1. Sending to a minor, by electronic means, visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.
2. Possessing, in electronic format, visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.

“Sexual conduct” includes not only sexual contact but also lewd exhibition of genitals and certain other body parts. 

The crime is a Class C misdemeanor, punishable by a fine of up to $500, but the degree of the crime can increase based on prior convictions.

The statute makes it clear that minors sexting each other can face charges, even if both parties agree to the exchange. 

There may be defenses available to a minor who is in receipt of sexting material. One potential defense is that the material depicts only the actor or another minor who is not more than two years older or younger than the actor and with whom the actor had a dating or spousal relationship at the time.

It is a defense to possession of such material that the possessor did not produce or solicit it, that they possessed it only after receiving it from another minor and that they destroyed it within a reasonable amount of time after receiving it.

These defenses are not available, however, if a minor receiving such material forwards it to a third party. Such an act could lead to charges of distribution.

Moreover, ignorance of the law is not a defense. Teens need to understand that sexting, even if consensual, can carry legal consequences that can affect their future. Parents must prioritize open communication, education and supervision. It’s also wise to seek experienced legal counsel.

Tylden Shaeffer, Attorney at Law, P.C. in San Antonio advises Texas clients who have been accused of criminal misconduct related to child pornography. If you or someone close to you is facing a charge of this nature, please call (210) 227-1500 or contact me online to schedule a free consultation at my office.