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When Does Sexting Become a Crime in California?

In California, there is no specific law prohibiting the sending of sexually explicit messages, nude pictures, or related videos between consenting adults, commonly known as “sexting.”

Sexting typically refers to sending or receiving sexually explicit electronic messages through email, texting, electronic messages, an app, or a webcam.  However, when the recipient of sexting is a minor under the age of 18 or if the conduct reaches the level of stalking, you could face criminal charges.

Sexting Laws in California
When a participant in sexting is a minor under the age of 18, it could lead to criminal charges.

Sexting is generally described as the exchange of sexually explicit or nude photos with a mobile electronic device. In our modern society, it's common for teenagers to use their cell phones to send or receive sexually related messages or photos. 

Sexting, however, does not always involve teenagers, and there is often a direct connection between sexting and California's child pornography laws and other laws discussed below.

When an adult engages in illegal sexting with a minor, it's considered a serious issue and could lead to criminal charges. There are other ways when sexting can be charged as a crime, such as saving nude pictures of minors obtained through a cell phone or computer. It's also illegal when someone engages in sexting to annoy, threaten, or harass someone.

Illegal sexting with minors is typically charged under different laws, such as California Penal Code 311, PC child pornography, and Penal Code 288.2 PC, sending harmful material to seduce a minor.

PC 311 PC is the statute making it a crime for someone to knowingly possess child pornography if they commit sexting with a minor and save sexually explicit images on their mobile device. Related Penal Code 311.3 PC makes it a crime for someone to knowingly develop, duplicate, or exchange media depicting a minor engaging in an act of sexual conduct.

Is Sexting in California Legal?

Whether sexting is legal in California will always depend on case details, such as if the sexting involved the following: 

  • Between consenting adults,
  • The purpose was to annoy, harass, or threaten,
  • Involved a minor under the age of 18,
  • If you saved a sexually explicit photo of a minor.

In California, sexting between consenting adults is typically legal and includes the following:

  • Sexually suggestive and explicit messages,
  • Sexually explicit or obscene pictures,
  • Other sexual-related material. 

On the other hand, sexting with a minor under the age of 18 in California is a crime, including when an adult engages in sexting with a minor or the minor sexting another minor when sending the material for purposes of seduction.

It's also a crime to save any explicit pictures of the minor that were obtained through sexting, which could be considered illegal possession of child pornography, described as any depicting sexual conduct by a minor under 18. Sexting is also illegal in California if you send sexually suggestive material with the intent to annoy, harass, or threaten them. 

Child Pornography - Penal Code 311 PC

Sometimes, you can be prosecuted for sexting and receive jail time, depending on the crime for which you were convicted. If you save an explicit photo of a minor under 18 that you obtained through sexting, you will be charged with possessing child pornography. 

California law defines child porn as material depicting someone under 18 engaged in sexual conduct. Penal Code 311.1 and 311.2 PC makes it a crime to engage in the following conduct related to child pornography: knowingly send, possess, duplicate, or transport it. The child porn laws prohibit the following:

  • Possession or sending of images of minors that are obscene or
  • Show them engaged in sexual conduct, showing their genitals or rectal area for sexual gratification. 

This means if you send or receive nude or sexually explicit images of a minor via sexting, you could be charged under Penal Code 311 PC.

Harmful Matter Sent to Seduce a Minor – Penal Code 288.2 PC

California Penal Code 288.2 PC makes it a crime to send, distribute, or offer to, using electronic communication, any harmful material to a minor with the intent to gratify, appeal, seduce, or arouse them sexually. PC 288.2 could cover some sexting that involves the following: 

  • Sending a minor a sexually explicit picture,
  • Sending sexually suggestive text messages to a minor,
  • Sending sexual content with the intent to arouse or have sex with them.
  • Sending a minor a pornographic video.

Harmful material” is described as anything that offensively depicts sexual conduct. “Seduce” means to entice a minor to engage in a sexual activity involving physical contact.

To convict, the prosecutor must prove beyond a reasonable doubt that you knew the recipient of the obscene material was a minor. Simply put, If an adult sexts a sexually explicit picture to a minor, you could face criminal charges under Penal Code 288.2 PC. 

Stalking – Penal Code 646.9 PC

California Penal Code 646.9 PC stalking could be filed if you send explicit messages to someone with the intent of annoying or harassing them. In other words, sexting might be charged as stalking if you send messages to someone with the intent to do the following:

  • Threaten someone,
  • Follow someone when it causes them to fear for their safety.

Annoying Phone Calls – Penal Code 653m

Suppose you send an obscene message to someone intending to annoy them. In that case, you could be charged with California Penal Code 653 for annoying phone calls. You can be found guilty of violating this law if you do the following: 

  • Send an obscene, threatening, or repeated message to someone and
  • You have the intent to annoy the recipient.

This state law applies to phone, email, text, or other electronic communication messages.

What are the Penalties for Sexting in Caliofrnia?

The potential penalties for sexting will always depend on the specific statute for which you were convicted. In most cases, sexting will be filed as a misdemeanor or a wobbler that can be charged as either a misdemeanor or felony. Some convictions could also carry mandatory sex offender registration under California Penal Code 290 PC.

The juvenile court system will handle teenagers accused of sexting and would typically face counseling or community service. Notably, sexting victims could file a civil lawsuit for emotional distress and other types of damages.

Penal Code 288.2 states that sending harmful material to seduce a minor is a “wobbler” offense. The filing decision will be based on the case details and the defendant's criminal history.  A PC 288.2 carries the following penalties:

  • A misdemeanor carries up to one year in county jail and a $1,000 fine.
  • A felony carries up to five years in state prison and a $10,000 fine.

A California child pornography charge is also a “wobbler” that carries the following penalties:

  • A misdemeanor can result in up to one year in jail and a $1,000 fine.
  • A felony can result in up to five years in state prison and fines of up to $100,000 per charge.
  • Sex offender registration.

Charges of Penal Code 646.9 stalking and Penal Code 653m annoying phone calls are typically misdemeanors that carry the following penalties:

  • Up to six months in county jail and
  • A fine of up to $1,000.
  • A felony stalking charge can result in up to five years in state prison.

Do You Have to Register as a Sex Offender?

If you are convicted of a felony offense listed above, you will be required to register as a sex offender defined under Penal Code 290 PC. California has a three-tier system for registering sex offenders under Senate Bill 384 that started on January 1, 2021, and includes the following:

  • Tier One requires registration as a sex offender for at least ten years and includes low-level sex offenses.
  • Tier Two requires registration for at least 20 years and includes crimes such as lewd acts with a minor under the age of 14.
  • Tier Three requires lifetime registration and includes the most severe sex crime such as rape, sex crimes against children ten and younger, and repeated sex offenses.

Failing to register as a sex offender is a separate crime that could lead to your arrest and prosecution for a felony or misdemeanor, depending on the underlying offense. If you are accused of sexting, contact The Hedding Law Firm in Los Angeles, CA, for more information.

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