Sexting is act of sending sexual messages to another person via text or social media (i.e., Telegram, Facebook, DM, Instagram, etc.). Sexting between two adults who consent to receiving sexual messages via text or social media is not a crime. However, sexting a minor, or sexting an adult who does not consent to receive sexual messages is a crime.
Note: The term “sexting” itself does not exist in the criminal law. Rather, the term sexting is used to describe sexual messages through texting, social media, or dating apps.
California crimes that are generally considered illegal sexting include:
Annoy or Molest a Minor (PC 647.6(a)). This sexting crime is more commonly called “annoy or molest a minor.” This crime can occur when either the defendant sends sexual texts to a minor (not videos or photos), or the defendant requests sexual text or materials (sexual photos or videos) from a minor.
Sending harmful matter to a child (sexual videos or photos) [PC 288.2] This crime occurs when the defendant sends sexually explicit material (sexual videos or photos) to a minor.
Contact a Minor for a Lewd Act (PC 288.3). This sexting crime occurs when the defendant contacts a minor for the purpose of committing a lewd act on the minor. This crime does not require the sending of sexually explicit language or materials (sexual videos or pictures). Rather, this crime occurs when the defendant attempts to contact a minor for the purpose of committing a lewd act against the minor.
Arrange to Meet a Minor for Lewd Act (PC 288.4(a)). This sexting crime occurs when the defendant arranges to meet a minor to commit a lewd act (sex act) against the minor. If the defendant in fact meets the minor, the crime is elevated to a more serious criminal charge (PC 288.4(b)).
Possess Obscene Matter Depicting a Child [Receiving or Possessing Child Porn] (PC 311.11). This sexting crime occurs when the minor is solicited to take sexual pictures of himself or herself and send them to the defendant. The moment the defendant receives the “child porn” he or she is guilty of possession of child pornography (PC 311.11).
Note: If the defendant sends child porn to a child, he or she may be charged with PC 311.11 [Possession of Child Pornography), and PC 311.1 (Distribute Child Pornography). This is in addition to any other crimes that may be charged in this circumstance, such as PC 647.6 (Annoy or Molest a Child), PC 288.2 (Send Harmful Matter to a Child), etc.
Note: Sexting crimes against adults are related to harassment crimes, such as harassment by electronic means (PC 653.2), stalking (PC 646.9), harassment by telephone (PC 653m), domestic violence (PC 243.4(E)(1)), invasion of privacy (PC 647(j)(2)), revenge porn (PC 647(j)(4)), and more.
Also, a person who sends unwanted sexting messages to another person may have a restraining order placed against his or her from further harassment against the victim (i.e., criminal protective order, civil harassment restraining order, domestic violence restraining order (DVRO), etc.).
Sexting Penalties
The penalties related to a particular sexting crime depends on the exact sexting crime for which the defendant is convicted.
For example, the sexting crime of annoying or harassing is usually classified as a misdemeanor (PC 647.6(a)), unless the harassment occurs in a residence (PC 647.6(b)). On the other hand, the sexting crime of arranging to meet a minor for the purpose of committing a lewd act is usually classified as a felony (PC 288.4(b)).
Sex Offender Registration: Most sexting crimes against minors will require the convicted defendant to register as a sex offender pursuant to Penal Code 290. The length of sex offender registration depends on the exact sexting crime for which the defendant is convicted. For more information, see PC 290 Registration Requirements and Tier Level for California Sex Offender Registrants.
For more information on the punishment related to a particular sex crime, including the classification of crime (i.e., misdemeanor or felony), see the following:
PC 647.6 Annoy or Molest a Minor
PC 288.2 Send Harmful Matter
PC 288.3 Contact Minor for Lewd Act
PC 288.4 Arrange to Meet Minor for Lewd Act
PC 311.11 Possession of Child Porn
Sexting Crimes Defenses
Each sexting crime requires different proof by the district attorney. This means that the defense to each sexting crime is different. Nevertheless, most sexting crimes have common defenses that are typically used by criminal defense attorney, including the defense of the statute of limitations, reasonable mistake of fact (as to the age of the minor), coerced confession, illegal search and seizure of defendant’s electronics (computer, house, and cell phone searches), and insufficient evidence.
Note: Consent of the minor to be contacted by the defendant is not a defense in sexting crimes as a minor is not capable of granting consent. For example, a minor cannot consent to arrange to meet a defendant for the purpose of sexual conduct.
For common defenses to the different sexting crimes, see the following:
PC 647.6 Annoy or Molest a Minor
PC 288.2 Send Harmful Matter
PC 288.3 Contact Minor for Lewd Act
PC 288.4 Arrange to Meet Minor for Lewd Act
PC 311.11 Possession of Child Porn
Note: Sexting crimes are not generally “diverted” through judicial diversion, military diversion, etc. However, mental health diversion may be available for some sexting crimes.
For more information on California sexting crimes, punishment and common defenses, contact our criminal defense attorneys for a free consultation. Our highly rated and successful criminal defense attorneys are available for free in-office, first-visit, consultations. In some cases, we can visit local jails for small fee (West Valley Detention Center, CDC, and Victorville Jail).
Our award-winning criminal defense attorneys defend all misdemeanor and felony sexting crimes in the Inland Empire, including defense in the cities and criminal courts of Fontana, Victorville, Riverside, Ontario, Rialto, Redlands, Rancho Cucamonga, Hesperia, Yucaipa, San Bernardino, and more. Call today!
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