Review of California's Sexting Laws and Legal Penalties
Sexting is described as the exchange of sexually explicit or nude pictures with a mobile device. Many states have passed laws that make sexting with a minor a crime, but not the state of California.
Today, it's fairly common for teenagers to use their cell phones to send or receive naked, sexually explicit photographs and videos, known as “sexting.”
Sexting, however, does not always involve teenagers and there is often a direct connection between sexting and California's child pornography and other laws discussed below.
Sexting is of course legal between consenting adults, but when a minor becomes involved in the activity, then it's normally a crime.
California Penal Code 311 PC makes it a crime for anyone to knowingly possess child pornography if they commit sexting with a minor and save sexually explicit images on their mobile device.
Similarly, Penal Code 311.3 PC makes it a crime for anyone to knowingly develop, duplicate, or exchange media depicting someone under 18 years engaging in an act of sexual conduct.
If you're facing criminal charges related to sexting, you're undoubtedly worried about what will happen next and the possible consequences of a criminal conviction. It's important to remember that you are innocent until proven guilty.
We all use the term “sexting” differently, but typically we're referring to sending or receiving sexually explicit electronic messages through email, texting, electronic messages, an app, or a webcam.
But if sexting involves a minor, results in someone saving an explicit photo of a minor, or you sent it to harass or threaten someone, you can face criminal charges.
In this article by our Los Angeles criminal defense lawyers, we'll discuss when sexting is illegal in California, the possible charges you can face related to sexting, the possible criminal penalties, and legal defenses to sexting charges.
Harmful Matter Sent to Seduce a Minor – Penal Code 288.2 PC
Under California Penal Code 288.2 PC, sexting with a minor is illegal, regardless of whether the minor consented. Sexting between two minors is also illegal.
Put simply, PC 288.2 makes it a crime to send, distribute, or offer to, using electronic communication any harmful matter to a minor with the intent to both sexually gratify or appeal to them or minor and seduce or arouse them
Thus, under the statute, some messages that would be illegal include:
- Sending a minor a sexually explicit photo,
- Sending text messages to a minor with suggestive or sexual content with the hopes of arousing them or having sex with them, or
- Sending a minor a pornographic video.
The harmful matter is described as anything that depicts sexual conduct in an offensive way.
To be convicted, it has to be proven defendant knew the recipient of the material was a minor. If an adult sexts a sexually explicit picture to a minor, then the prosecutor could use Penal Code 288.2 PC to file charges against them.
Child Pornography - Penal Code 311 PC
If you save an explicit photo of a minor that you got through sexting, you could also face charges for possessing child pornography.
California law defines child pornography as material depicting someone under 18 engaged in sexual conduct. If someone sends you a photo or video of child pornography, saving it is also illegal.
California's child pornography laws prohibit the possession or sending of images of minors that are obscene or show them engaged in sexual conduct along with showing their genitals or rectal area for sexual gratification.
If you send or receive nude or sexually explicit images of a minor through sexting, the crime will normally fall under this statute, which applies to adults who sext images to a minor.
In some situations, sexting could be prosecuted under federal laws that carry severe penalties if you are convicted.
Federal child pornography laws are defined under 18 U.S.C. § 2252. Sexual exploitation of children is defined 18 U.S.C. § 2251 and defined as when someone attempts to induce, entice, or persuade a minor to engage in sexual acts to make a video or other images.
Stalking – Penal Code 646.9 PC
If you send explicit messages to someone with the intent of annoying or harassing them, you could face charges of stalking or sending annoying phone calls under California law.
Annoying Phone Calls: If you send an obscene message to someone intending to annoy them, you could face charges for sending annoying phone calls. While the statute title is “making annoying phone calls,” the law includes emails and messages and texts sent by phone and is defined under Penal Code 653m PC.
Stalking: Under California Penal Code 646.9 PC, if you send explicit messages with the intent to “harass” or “threaten” someone, and it causes them to fear for their safety, you could face stalking charges.
Penalties for Sexting in California
Penalties for sexting, particularly with a minor, can be serious under California law and will always depend on what statute is used by the prosecutor.
In some cases, prosecutors will charge these offenses as felonies, and many convictions can result in mandatory registration as a sex offender.
In California, sending harmful matter to a minor is a “wobbler” offense which is a crime that prosecutors can charge as either a misdemeanor or a felony, depending on the circumstances of the case and the defendant's criminal history.
If prosecutors seek Penal Code 288.2 PC as a misdemeanor, you could face up to:
- one year in county jail, and
- up to a $1,000 fine.
For felony charges of sending harmful matter to a minor, you could face up to five years in prison.
In California, child pornography is also a “wobbler.” In either case, you can face registration as a sex offender, even for images sent between two consenting teens.
A misdemeanor child pornography charge can result in up to one year in jail and a $1,000 fine. A felony child pornography charge can result in prison for up to five years and fines of up to $100,000 per charge.
Charges of sending annoying messages by phone are typically misdemeanor charges. A conviction can result in up to six months in county jail and up to a $1,000 fine.
Stalking is another wobbler offense. If charged as a misdemeanor, a conviction can land you up to one year in jail and up to a $1,000 fine. However, a felony stalking charge can result in up to five years in prison.
Registration as a Sex Offender
Any adult convicted of any felony offense listed above will be required to register in California's sex offender registry under Penal Code 290 PC.
California law now has a three-tier system for registering sex offenders under Senate Bill 384 that took effect on January 1, 2021:
- Tier One: Tier one crimes require registration as a sex offender for five to ten years. This tier includes crimes such as indecent exposure and other low-level offenses.
- Tier Two: Tier two crimes require registration as a sex offender for ten to 20 years. This tier includes crimes such as lewdness with a minor under 14.
- Tier Three: California reserves tier three for the most serious sex offenders and requires lifetime registration. Crimes that fall under tier three include rape, sex crimes against children ten and younger, and repeated sex offenses.
The court will determine your sex offender tier registration based on the conviction, the circumstances of the case, and the court's findings.
Failing to register as a sex offender is a crime that could lead to your arrest and prosecution for a felony or misdemeanor offense.
We need to first review the details of your sexting allegation to determine an appropriate defense strategy.
Eisner Gorin LLP is located in Los Angeles County and you can reach us for an initial consultation by calling (310) 328-3776, or by filling out our contact form.