What is sexting?
Sexting is the act of sending sexually explicit messages, photographs, or videos primarily between mobile phones (Wikipedia) — Texas law also includes any “electronic means,” which includes computers and other digital devices. The term was first popularized in early 21st century, and combines the words “sex” with “texting.”
Examples of Sexting
You are at a party with a group of friends. They think it would liven up the party to take pictures of each other, without clothes and send them to each other.
During exam week you are too busy to see your boyfriend/girlfriend in person, yet you want them to know that you are thinking of them. You decide to email them several photos you took of yourself with your clothes off.
After you break up with them, your ex-boyfriend/girlfriend forwards a photo you without clothes on—a photo you faxed them, back when you were still dating— to a close friend of theirs who has promised not to share it with anyone else.
Since Texas Senate Bill 407 passed in 2011, the legal consequences regarding sexting have been expanded; therefore, it is important for everyone – especially minors – to become aware of the penalties that can come from being convicted or adjudicated of sexting.
- Recognize the difference between “possession” and “promotion” of electronic material
- Identify at least two possible legal consequences for sexting
- Recognize the difference in the conditions for Class A, B, and C misdemeanors for sexting
- Recognize the difference between Class A, B, and C misdemeanor penalties
- Recognize the conditions and penalties for the felony offenses of possession or promotion of child pornography
- Recognize the difference between being charged for sexting as a child or as a minor who is not a child
- Recognize the conditions of juvenile probation
This module will review the following topics:
- What is Texas Senate Bill 407?
- What is the difference between “promotion” and “possession”?
- What are the misdemeanor conditions and penalties for sexting?
- What are the felony conditions and penalties for sexting?
- What is the educational program for sexting prevention?
- What is the difference between being charged for sexting as a child or a minor?
What is Texas Senate Bill 407?
Before Texas Senate Bill 407 (SB 407) was passed, minors who engaged in sexting could only be charged with promotion or possession of child pornography, which, if convicted, carries a felony offense and lifelong registry as a sex offender for up to 10 years after supervision expires– both extremely serious penalties. SB 407 Texas Penal Code Section 43.261 now provides courts less extreme charges and penalties that still discourage the practice of sexting without the life-altering consequences of a possible felony conviction and sex offender status.
In general, you are illegally engaging in sexting if you – knowingly or on purpose – send, show or keep a picture or video of a minor – including yourself – engaging in “sexual conduct”.
What is the difference between “promotion” and “possession” of electronic material?
Technically, the law uses the terms “promotion” and “possession” when referring to sending and keeping illegal “visual material”. While “possession” simply means keeping a picture or video, the term “promotion”, according to the law, also means manufacture, sell, give, lend, transmit, publish, distribute, present, or exhibit.
- Possession: having actual care, custody, control or management of material that depicts another minor engaging in sexual conduct that has not been destroyed in a reasonable amount of time
- Promotion: to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, to transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or agree to do any of the above, sexually-explicit or sexually- suggestive images or video via mobile device or computer
What are the misdemeanor conditions and penalties for sexting?
Class C misdemeanor: A fine of up to $500.00.
You can be charged with a Class C Misdemeanor for sexting promotion or possession if it is a first-time offense, and you are a minor who is not a child
Class B misdemeanor: A fine up to $2,000.00, 180 days in jail, or both.
You can be charged with a Class B Misdemeanor for sexting if you are a minor and you:
- Promoted visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend someone
- Have previously been convicted for sexting
Class A misdemeanor: A fine up to $4,000.00, one year in jail, or both.
You can be charged with a Class A Misdemeanor for sexting if you are a minor and you:
- Have previously been convicted one or more times of promoting the visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend someone
- Have previously been convicted for general sexting promotion or possession two or more times
What are the felony conditions and penalties for for promotion or possession of child pornography?
Third degree felony: A fine not to exceed $10,000.00 and at least two years in prison, but no more than 10 years
You can be charged with a third degree felony for possession of child pornography if you are at least 18 years old.
Second degree felony: A fine not to exceed $10,000 and at least 2 years in prison, but no more than 20 years.
You can be charged with a second degree felony for promotion of child pornography as either a minor or as an adult.
Consider this: It’s completely possible that as an 18 year old high school senior, you may be charged and convicted of possession and/or promotion of child pornography if the person you’re dating is under 18 years old and sends you such images and you have them on your phone or computer. The offense of possession is complete upon receipt of the images; promotion involves showing or sending them on to other people and is a second degree felony.
What is the Sexting Prevention Education Program?
In place of, or in addition to a fine or jail time, a minor may be required by a judge or probation department to take and pass an educational program regarding sexting. This program, created by the Texas School Safety Center, is not only specifically named as one that courts can require, but Texas law also requires that all school districts make information about this program available every year to both parents and students in a grade level that the district considers appropriate.
What is the difference between being charged for sexting as a child or as a minor who is not a child?
If you are under the age of 18 and are charged with a Class A, B, or C misdemeanor, the consequences can range from probation to fines and/or prison time. Juvenile probation and adult probation both give you the opportunity to reflect and learn from your mistakes, but should you fail to uphold your assigned responsibilities as detailed in your terms of probation, your sanctions can become more severe. So, if a child in Texas is charged with sexting, s/he will be dealt with in juvenile court. If the charge of sexting is found to be true, the child may be found to have engaged in Conduct Indicating a Need for Supervision (CINS), and be subject to the appropriate progressive sanction for the level of the offense.
1. At Sanction Level I, a juvenile court or probation department may:
- Require counseling for the child regarding the child’s conduct
- Inform the child of the progressive sanctions that may beimposed on the child if the child continues to engage in delinquent conduct or conduct indicating a need forsupervision
- Inform the child’s parents or guardians of their responsibility to impose reasonable restrictions on the child to prevent the
conduct from recurring
- Provide information or other assistance to the child or the child’s parents or guardians in securing needed social services
- Require the child or the child’s parents or guardians to participate in Early Youth Intervention Services, if available to the child or the child’s parents or guardians
- Refer the child to a community-based citizen intervention program approved by the juvenile court
- Release the child to the child’s parents or guardians
- Require the child to attend and successfully complete a sexting prevention educational program, or another equivalent educational program.
2. In addition to the Sanction Level I conditions, a juvenile court or probation department may:
- Place a child on prosecution for not less than three months or more than six months
- Require the child to make restitution to the victim of the child’s conduct or to perform community service
- Require the child’s parents or guardians to identify restrictions the parents or guardians will impose on the child’s activities and requirements they will set for the child’s behavior
- Require the attendance and successful completion of a sexting prevention educational program
If a 17 year old minor in Texas is charged with sexting, the case will likely be handled by a justice, municipal, or county court. If found guilty, it is possible for a 17 year old minor to receive probation as part of deferred adjudication.
Should a child or minor successfully fulfill his/her terms of probation, it is possible to apply for the conviction to be removed from his/her record. Therefore, the justice system – especially for juveniles – gives people the opportunity to make up and learn from their mistakes, start over with a clean slate, and participate as safe and responsible citizens.