An Overview of Sexting Laws within Texas
A classic quotation posits that "a little knowledge is a dangerous thing." The Pinterest generation might well turn that wisdom into a meme, but many adults take comfort from knowing the law on an important issue like sexting. Texas law, as with most of its neighbors, provides a little knowledge for everyone. But it does so by pausing to look at the details after offering the fundamentals.
Sexting, of course, is the act of sending, receiving, or forwarding sexual or semi-sexual text, images, or other electronic messages (i.e., videos, audio recordings, etc.) between two or more people, often via smartphone. So common has the practice become that several collections of verbiage have been created just to define the individual words, phrases, and terms of art that now comprise the language of contemporary flirting.
For purposes of evaluating the legality of sexting, two categories of individuals exist: adults and minors. Minors face the possibility of criminal prosecution (and felony charges) under Texas law; adults do not. For the good folks who are 18 and older and simply want to know what the law is, here it is:
Section 42.07 (a) of the Penal Code, titled "Harassment," defined online harassment to include repeated electronic communications, including e-mail, text messages, and phone calls, "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass another."
This definition generally does not impact the rights of adults who want to share nude or semi-nude images or videos with one another. Even under Texas law, adult on adult sexting is permissible under almost all foreseeable circumstances.
But don’t dismiss the potential for less savory uses of nude selfies. Texas law also includes Sec. 21.16, titled "Distribution of Intimate Visual Material," which defines an illegal use of nude or semi-nude images of people over the age of 17. It describes a second crime that involves "sending, exhibiting, exposing , or transmitting an intimate visual material" after receiving an unsolicited glimpse of that material from the person whose picture or video it is.
What happens if you have a nude photograph or video of a former partner saved to your phone or in the cloud, and you decide to send it to a friend who asks for it? Under Sec. 21.16, you are guilty of a Class C misdemeanor for "distributing" that intimate material. That violative conduct includes disseminating the picture or video "to a third party, regardless of whether the third party requested or solicited the intimate visual material." A Class C charge is punishable by a fine of up to $500. Further, more than one Class C violation can be consolidated into a single charge, potentially exposing the target to hundreds of dollars in fines if a law enforcement agency pursues a case against them.
As of this writing, the use of nude or semi-nude images of those over the age of 17 is not illegal under Texas law. That is, absent a request or anticipation of unsolicited "harassment, annoyance, alarm, abuse, torment, or embarrassment." But it is possible that if you send multiple nude or semi-nude images or videos to another adult and one of them finds this annoying or harassing, it could become a misdemeanor under Sec. 42.07 (a) of the Penal Code.
But if the age of the recipient is an issue and the image was obtained or solicited, it is likely a federal crime under 18 U.S.C. § 2256 to engage in sexting with a minor (i.e., anyone under the age of 17). It could result in years of imprisonment.
So the good news is that most adults in the Lone Star State will not be prosecuted for participating in sexting exchanges. The bad news, however, is that even though the recipient is an adult, a subsequent decision by them not to receive further communications from you could open the door to a criminal prosecution for a misdemeanor under Sec. 42.07 (a) of the Penal Code.
Always seek experienced legal counsel about any specific legal questions you have about sexting or any other topic of your choosing.
Legal Ramifications of Sexting for Adults
The legal consequences for sexting related to adults can be severe. Texas Penal Code § 21.16 is the law pertaining to "deceptive, harassing, and threatening communication." If a person is arrested for sexting with anyone, the charges will almost certainly be filed under this section. This section of the law prohibits several types of communications, for example: Penal Code § 21.16(b) provides that a person commits an offense if he intentionally or knowingly sends an electronic message that materially or visibly obfuscates or alters the identity of the sender so as to prevent the recipient of the message from being able to reasonably discern the true identity of the sender. In the case of sexting, many law enforcement agencies have taken the position that probably the most intense enforcement action perhaps will be for minors sending nude photos to each other. Arguably, if an adult is found guilty of sexting, the defendant may be found guilty of class C misdemeanor punishable by a fine not to exceed $500; or if the recipient of the sexually explicit photo was a minor, the offender could be placed on probation for up to 3 years and/or face a $10,000 fine per image or video sent.
Consent as it Pertains to Sexting
Legally speaking, consent can change everything when it comes to sexting. As long as the parties are all over 17 years of age (the legal age of consent in Texas), and there are no concerns about coercion, consent – alternatively refusing consent – to an exchange of nudity, explicit videos, or sexual conversations will likely eliminate any issues. Consent is a similar – but slightly different – animal than permission. If you send a photo to someone, and you tell them that they are not to share that photo with anyone else, they may share that photo anyway. Generally speaking, they will be violating your request, and if you find out about it, you might be disappointed, or upset or even angry. But it is unlikely that you would have any legal recourse. You didn’t give them the permission to share it. But given that you gave them the photo of your own free will, you are unlikely to have any significant legal claim. However, if you can prove that someone shared the information with the intent to injure you, you may have a potential cause of action against them. Thus, consent to sharing (or not); consent to posting; consent to committing these acts and taking these photos, will go a long way to proving, or disproving, if you have a strong case in a sexting lawsuit.
Case Examples of Recent Adult Sexting Legislation
From the outset, the landscape governing sexting in Texas has changed significantly from the early days of sexting when press reports cited only a few scattered cases around the country. Early examples included In re Joe N, 361 S.W.3d 615 (Tex. App.—Dallas 2012, orig. proceeding) (discussed below), and T.V. v. State, 420 S.W.3d 601 (Tex. App.-Fort Worth 2014, pet. granted), where a teenager pled guilty to posting sexually explicit selfies on an adult website, receiving five years’ probation on the condition that he register as a sex offender.
In March 2015, in In re C.C.E., in an unpublished order of the Court of Appeals for the Eleventh District of Texas at Eastland, Case No. 11-15-00389-CV, the Texas Eleventh District Court of Appeals ordered the trial court to sever a charge of electronic solicitation of a minor from the delinquency conduct of the juvenile defendant. The prosecution has apparently not yet decided whether to refile this charge or allow it to be dismissed.
These recent developments hardly mean that accusations of sexting will go unpunished. In In re Joe N, 361 S.W.3d 615 (Tex. App.—Dallas 2012, orig. proceeding), the Dallas Court of Appeals upheld jurisdiction over a juvenile accused of sending sexually explicit text messages that were discovered on his cellphone by his parents. The child was taken to the juvenile department after a review of the cellphone found numerous text messages referring to oral and anal sex. The juvenile coughed up the names of the purported victims, a number of whom were also interviewed before the trial court. At the hearing on the juvenile’s motion to dismiss the charges for lack of evidence of the elements of criminal sexual conduct, the trial court heard testimony from one of the victims that the communications had been reciprocal; that is, the victim had responded in kind and the sexual conduct had been consensual. Joe N testified that his cellphone was stolen and that the text messages were fraudulent. Joe N’s father testified that he had examined the phone before giving it back to Joe N and had not seen any messages of that nature. Joe N’s older brother testified that he had stayed with the defendant’s other family members after Joe N was picked up by the police and had examined the cellphone, finding no lewd messages. The Dallas court of appeals applied the test for criminal culpability for juvenile delinquency, which focuses on whether the "best interests of the public and the welfare of the juvenile require that disposition of the case proceed [under the Family Code]," not on the sufficiency of the evidence. After providing an extensive discussion of an earlier decision from the appellate court, the Court concluded that, since it had previously held that the element of intent could be proved up through circumstantial evidence that focused on "the credibility of the witnesses and the weight of the evidence," the evidence was legally sufficient to support the allegations. This conclusion is at odds with the decision in In re C.C.E. wherein the appellate court refused to defer to the trial court at all, apparently finding the evidence to be legally insufficient per se.
In short, until a higher Texas court at least weighs in, trial courts will likely continue to reject attempts to dismiss juvenile indictments on motions to dismiss based on arguments about the sufficiency of the evidence.
Possible Defenses to Sexting Allegations
Several potential defenses may arise in the context of sexting laws for adults. These include lack of requisite intent, mistake of fact, mistaken belief that the recipient was not a minor, and many others.
Mistake of Fact
Mistake of fact means that the accused person did not know certain facts, or reasonably believed certain facts were true and thus did not possess the requisite intent to commit the offense. If the accused is accused of sending a lewd image to someone the accused believed to be an adult, but it turns out the recipient was actually a minor, that may be a mistake of fact. In such a case the accused reasonably believed the recipient was an adult based on the evidence presented to the accused . For example, perhaps the relationship was long-term and the accused never had any actual knowledge of the recipient’s age to the contrary. A person accused of a sexting crime would need to proffer evidence of the belief in question or perhaps argue that the mistake is reasonable under the circumstances.
Statute of Limitations
Texas has a statute of limitations, or time limit, for filing sexting charges in criminal court. For most offenses, it is three years from the date of the commission of the offense. The statute of limitations for felony offenses under the current sexting law is five years. So if the state attorney wants to bring charges under the current law, he or she generally needs to do so within the five-year limitation period.
How to Avoid the Legal Issues with Sexting
To engage in sexting legally and safely, it is important to understand the legal context and take concrete steps to protect personal data. Here are some tips for adults who want to avoid negative legal consequences for sexting: First, know the law. As discussed above, in Texas, sexting between minors can lead to serious criminal charges. If you are involved with a minor who may be involved in sexting, you need to be aware of the laws in your area. It is your responsibility to make sure that you comply with the law. If there is any chance that your partner is a minor, you should verify their age before proceeding with any sexting or similar activities. Second, always ensure that consent is mutual. Seek explicit consent and make sure that you are not putting any pressure on the other person to participate in new activities. It is always important to keep in mind that consent can be revoked at any time and that mutual consent is essential for legal and healthy sexual activity. Third, agree on privacy protections. Before exchanging intimate images, make sure that you have both agreed to protect each other’s personal data. Discuss how you will both protect your phones and images from hacking, including the importance of creating passwords, not using devices in public spaces, and making sure to log out after using social media and texting apps. Finally, never reveal personal information. Even if you trust the recipient of your intimate photos, getting too personal could open you up to identity theft or harassment and other financial and legal negative consequences. Keep things impersonal or use pseudonyms, aliases, or other methods to keep your identities separate.
Comparing the Sexting Laws of Other States
To gain a more comprehensive understanding of the sexting laws for adults in Texas, it is helpful to compare and contrast them with similar laws in other states.
In most cases, sexting laws in other states have been enacted to protect children from unwanted sexual advances or harassment. These laws typically define "child" as someone under the age of 18. In some states, such as Michigan, these laws are fairly extensive and carry stiff penalties for distribution of nude or sexually explicit images of minors, teens and children. In others — New Jersey, for example — they are much less involved.
In general, the national trend regarding sexting laws is to mete out less serious consequences to teens and adults than to children. In California and New Jersey, people who are charged with distributing nude photos of teens under the age of 18 can face up to five years in prison; however, since a penalty of that magnitude is reserved for true pedophiles, few offenders receive the maximum proposed penalty.
In Washington DC, distribution is punishable by a $25 fine, $300 fine for five or more offenses in two years and $500 fine for distributing offensive or abusive material.
Other U.S. jurisdictions have decided that impairment of victims and availability of evidence are more important considerations when formulating sexting legislation. Laws in some states stipulate that offenders will not be prosecuted if the victim cannot be identified, lacked the capacity to consent to disclosure or has not been impugned .
Oregon’s law is considerably more nuanced — for the crime of promoting the sexual performance of a minor, two elements must be present: 1) that the offender knowingly commits one of several acts within five categories, including employ, authorize or encourage a child to engage in the unlawful trade of sex acts; and 2) that she knowingly or recklessly promotes the trade of sex acts by a child and obtains something of value.
A couple of states maintain no laws regulating sexting at all. Hawaii’s law specifically exempts criminalization of sexting, while Florida has no statutes whatsoever.
By now, you may have a general feel for the scope and assumptions of sexting laws, but what about Texas? What is Texas’ stance on sexting laws? How do the Lone Star State’s laws compare to other states? What sets Texas apart from, or similarly arranges it with, other states? Below are a few differences between Texas and other states.
Not all states are as lenient as Texas when it comes to sexting laws. The state of Washington deals with the issue in a way that can result in fines, rather than jail time for the offender. Wisconsin has also opted for a no-jail-time approach to teen sexting, issuing fat fines to those convicted of the crime.
On the flip side, other states — like Georgia, Hawaii, Louisiana, Michigan, North Carolina and South Carolina — have much harder lines when it comes to sexting, making it a crime on par with any number of misdemeanors and felonies. Georgia, Hawaii, Louisiana, Michigan and North Carolina treat it as a felony, while South Carolina upholds misdemeanor charges. Given that Texas has clearly decided to take a much more lax approach, these states are very different from the Lone Star state.