Sexting is the sending and receiving nude photos, flirtatious messages, or explicit videos through electronic means by using an app, smartphone, email, or webcam.

Generally, sexting is legal in California, as long as it is between two consenting adults. The illegality of sexting depends on the facts of each case.

The following facts are important in determining whether sexting was legal or not:

• Did it involve two consenting adults?
• Was a minor involved?
• Did it lead to the saving of an explicit photo of a minor?
• Was it intended to annoy, harass or threaten the recipient?

When is Sexting illegal in California?

Sexting amounts to an offense in the following circumstances:

1. Where a minor is involved as prescribed under PC 288.2

2. Saving images of a minor as per PC 311.2

3. Sexting with the intention of annoying, harassing, or threatening the recipient as outlined in PC 646.9 or distribution without consent as per Section 647(j)4

1) Minor Involvement

It is criminalized to send a minor harmful matter with the intention of seducing such a minor or for the sexual arousal of the recipient.

Harmful matter in this regard refers to content that describes offensive sexual conduct and lacks any value for minors.

This offense applies where:

• An adult sending a minor sexual messages; or
• A minor sending another minor sexual messages 

Section 288.2 of California’s Penal Code states that the distribution or exhibition of offensive sexual material by any means is unlawful. It does not matter how such matter is distributed. Provided the matter is sent to a minor, it is a criminal offense.

There are two elements to this crime:

• Distribution of harmful matter by whatever means; and
• The intention of seducing the minor or sexually arousing the recipient

2) Child Pornography

Section 311.1 and Section 311.2 of the Penal Code both criminalize possession of child pornography. It is considered an offense to send a minor sexual messages and save their images.

The elements of this crime are:

• Sexting with a minor; and
• Saving the minor’s explicit images.

3) Annoying Phone Calls

A charge is preferred under Section 653m of the Penal Code where sexting was done to annoy the recipient.

Though the statute is referred to as ‘Annoying phone calls’, it applies to messages sent via text messages, email, and the phone.

The elements of this crime are:

• Repeatedly sending obscene or threatening messages to someone; and
• The intention of annoying the recipient.

4) Stalking

When a person sends messages to harass or threaten another person, sexting can be charged as stalking as per Section 646.9 of the Penal Code.

The elements of this crime include:

• Following, harassing, or threatening another person; and
• Causing the other person to fear for their safety as a result of the actions above.

While consensual sexting between adults is legal, the distribution of nude photos of another person without their consent is unlawful. It is considered revenge porn and can result in illegal sexting, as stated under Section 647 of the Penal Code.

The elements for this crime include:

• Intentional distribution of an image of the intimate body part of another identifiable person
• There existed an understanding that the image should remain private
• The distributor knew or ought to have reasonably known that such distribution would cause the person serious emotional distress
• The subject of the photo suffers serious emotional damage

Penalties for Illegal Sexting

The penalties for illegal sexting vary depending on the charge assigned. These offenses are commonly charged under the Penal Code as:

1. Misdemeanor crimes

2. Wobbler offenses

Misdemeanor Crimes

A violation of Section 653m on of the Penal Code relating to annoying phone texts as well as revenge porn shall result in a misdemeanor charge and is punishable by:

• Custody in a county jail for up to 6 months; and/or
• A maximum fine of $1,000

For revenge porn, the penalties can increase to a year in jail and a fine of $2,000 where the defendant has one or more prior convictions for revenge porn or if the victim was a minor.

Wobbler Offenses

A wobbler offense is an offense that is neither a misdemeanor nor a felony. A prosecutor or judge must determine whether an offense is either a felony or misdemeanor. While a prosecutor has the discretion to charge an accused with a misdemeanor or felony, it is upon the judge who has the final say concerning sentencing.

In light of illegal sexting, any other charge except that under PC 653m is considered a wobbler.

In determining whether the charge should be a misdemeanor or felony, the following factors come to play:

• Facts of the case;
• The criminal history of the defendant

For crimes charged as misdemeanors, they are punishable by:

• Imprisonment in a county jail for up to six months or a year; and/or
• Misdemeanor or summary probation

Where charged as a felony, they are punishable by:

• Custody in state prison for two to five years; and/or
• Felony or formal probation;
• Mandatory sex offender registration

Defenses to Illegal Sexting

There may be no viable defenses to illegal sexting, but for revenge porn, an accused could invoke the following defenses:

• No intent to cause emotional distress;
• Unintentional distribution;
• Consent

There are no specific defenses to illegal sexting, but as a general rule, you must take note of these rules:

• Do not contact persons under 18.
• Only involve yourself with persons above 18 who have consented to the distribution of their images.

California courts are gradually catching up to the digital world. As a result, new internet offenses are being developed at a rapid pace. These laws, however, often lie in a grey area and with the appropriate lawyer, you may be able to construct an aggressive and thorough defense strategy to save your future. If you have been charged with an online sex crime, such as harassment, revenge porn, or crimes against a kid, you should contact us at the Criminal Defense Heroes P.C. to talk about your case.