When Sexting Is a Crime in Texas

If you’ve ever asked “When is sexting a crime in Texas?” you’re not alone.

Almost everyone owns or has access to a smartphone today. Many teens and young adults participate in sexting,an activity that involves sending sexually-oriented text messages to others. Although younger people may view sexting as a relatively commonplace or harmless activity, law enforcement professionals, prosecutors, and parents tend to view sexting as a dangerous pastime.

In reality, sexting can damage a person’s reputation and future. This post explores what sexting is, applicable Texas laws, and practical applications of laws to sexting violations.

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What is Sexting?

Sexting combines sex and texting. Typically, an individual engaged in sexting sends explicit or otherwise suggestive messages by email or text message using a mobile phone, tablet, or other devices:

  • The sender depicted in the images typically consents to another person’s taking a picture or takes a “selfie” image of himself or herself.
  • Quite often, the sender takes the sexually explicit photos at the request of another person. He or she sends the images to a boyfriend or girlfriend, or another person to whom they’re attracted.
  • In general, the sender believes the recipient will keep the images private.

Difficulties arise when the recipient posts the “private” photos online or forwards the email or text with images to others. The sender typically hasn’t consented to share the images with other parties.

Is Sexting a Common Activity?

According to studies, sexting is a common activity. A 2015 study performed by researchers at Pennsylvania’s Drexel University concluded that more than 80 percent of participants admitted to sexting in the past 12 months. In addition:

  • Twenty percent of teenagers send or post nude/semi-nude videos of images of themselves (GuardChild.com).
  • Thirty-nine percent of teens admitted to sending “sexually suggestive” text or email messages.

What Criminal Laws Apply to Sexting in Texas?

Prosecutors may use a variety of laws to prosecute sexters, especially if the sexting activity involves a minor. If convicted of an offense, the defendant faces up to first-degree felony punishments:

Promotion or unlawful disclosure of intimate visual materials

It’s unlawful for an individual to intentionally or knowingly share videos of images of an individual engaged in sexually explicit conduct (or with his or her genitalia and intimate body parts exposed) unless he or she gives consent. If the individual depicted in the images or video held a “reasonable expectation” that these materials would be privately shared with the recipient, he or she is harmed—especially when his or her personal identity is revealed via the disclosure.

If convicted, the defendant faces a Class A misdemeanor, involving punishments of up to 12 months in a Texas county jail and/or a maximum $4,000 fine.

Sales, distribution, or display of harmful materials to a minor individual

An individual who 1) shows, sells, or distributes harmful materials to a minor person, with the knowledge that the material(s) are harmful and that he or she is a minor, or 2) displays these materials in a reckless manner (concerning the presence of a minor individual), faces a Class A misdemeanor unless he or she involves a minor individual in committing the offense.

In that case, he or she faces third-degree felony punishments of two-10 years’ incarceration and a maximum $10,000 fine.

Sexual performance by a child

Sexual performance by a child is committed when an individual induces, hires, coaxes, or authorizes a minor less than 18 years of age to engage in sexual conduct:

  • Sexual conduct also includes “lewd exhibition” of the child’s breast, genitalia, or anus.
  • If convicted, the offender faces a third-degree felony charge.
  • However, if the child was younger than 14 years old when the offense occurred, the defendant faces a second-degree felony punishment of two-20 years’ incarceration and a maximum $10,000 fine.

Possession/promotion of child pornography

An individual commits the offense or promotion or possession of child pornography if 1) he or she intentionally and/or 2) knowingly possesses or promotes materials depicting one or more children engaged in sexual conduct (when he or she knows that these materials depict a child or children):

  • If convicted, the offender faces a third-degree felony.
  • In some instances, the sex crime charges may be enhanced to a second-degree or first-degree felony.

Texas “Sexting Law”

Texas Penal Code §43.261 can make the act of sexting illegal when it involves an electronic transmittal of certain visual materials that depict one or more minor individuals.

The law also says that an individual (including minor individuals) commits a crime when 1) he or she sends visual materials, such as photos, images, or videos that depict a minor individual less than 17 years of age over an electronic medium or 2) he or she possesses visual materials that depict other minors performing sexual acts or conduct, when he or she created the materials or knows that another person younger than 17 years of age did so.

Importantly, if the sender (or another minor individual who is two years or less older/younger than the sender) and the other individual(s) are involved in a dating relationship when the materials were created, Texas law doesn’t consider this a crime:

  • For instance, when a girl 16 years of age sends a nude selfie to a boyfriend 18 years of age, this isn’t considered an offense.
  • In contrast, if the girl is dating an individual more than 18 years of age and sends him sexually explicit materials (or if she sends the image to another person she isn’t dating), this is considered a crime.

Sexting activities become criminal when minors’ sexual images are transmitted or when an individual possesses or promotes child pornography.

An individual commits a criminal act when he or she 1) knowingly/intentionally accesses or possesses child pornography with the intention to view these materials or 2) owns or accesses visual material(s) which show children (less than 18 years of age) when the image(s) were taken or 3) engages in sexual activity, whether consensual or forced, or 4) knows that these materials depict a child or children.

Note that Texas law regarding child pornography isn’t bound by age-related offenses or age limits.

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Contradictory Sexting Laws in Texas

Laws involving sexting have resulted in contradictory verdicts because of Texas’ age of consent of 17 years:

  • For instance, a 17-year-old individual may become involved with a consensual intimate relationship with an older person but he or she isn’t necessarily allowed to share sexual images with him or her.
  • Similarly, a 17-year-old person can give legal consent to intimate activity and may even send sexually explicit videos or images to his or her dating partner (within two years of his or her age) but isn’t legally allowed to share sexually explicit materials with an adult age 20 or older. This scenario could result in an offense for the 17-year-old as well as an offense for the adult partner.

Prosecution of Sexting Cases in Texas

Other laws used to prosecute sexting behaviors don’t specifically address this behavior:

  • The unlawful disclosure/promotion of intimate visual materials law states that the individual depicted had “reasonable expectations” that the images would be kept private.
  • Since almost half of teens say they share suggestive or explicit texts with others—and up to 40 percent believe it’s commonplace to share completely or semi-nude images with other persons than the intended recipient, this undermines the law’s reasonable expectation of privacy. (ChildGuard.com)
  • Possession or promotion of child pornography law is challenging when used to prosecute a sexting case. It doesn’t protect the victim from prosecution. In other words, if a teen takes nude videos and sends these images to her dating partner and he shares them with others, the teen taking the videos could be found guilty of the promotion of child pornography as well as the dating partner who shared the videos with others. In this scenario, the prosecutor must decide to prosecute both individuals or do nothing at all.

Sex Offender Registration in Texas Sexting Cases

If an individual is adjudicated for or convicted of sexting under the promotion or possession of child pornography statute, he or she is required to register as a Texas sex offender for life if he or she was prosecuted in the adult criminal justice system (or for up to 10 years’ at the end of his or her sentence if adjudicated as a juvenile).

This may be considered an extremely severe consequence of relatively common behavior in today’s world.

However, it’s crucial to understand that, if prosecuted and convicted of these offenses, it’s possible to face sex offender status for life.

Contact a Houston Sex Crimes Attorney

Now that you when sexting is a crime in Texas, don’t go this alone. If you or someone you love is facing charges arising from sexting, contact The Law Office of Matthew D. Sharp in Houston now to schedule an initial case evaluation now at 713-868-6100.

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