When Is Sexting a Criminal Offense?

Posted on by New Mexico Criminal Law Offices

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Sexting involves sending suggestive material, nude images, or sex-related dialog via text. Teens and adults have been engaging in sexting for some time now, but only recently did the laws start to catch up with the technology.

Even so, the laws in place can be confusing. In some cases, it might be illegal to “sext,” while in others, it is no violation of the law. Understanding what makes sexting a criminal offense and the penalties you could face for it is important – especially if you are arrested.

Recent Law Changes for the Albuquerque Area

In 2016, Governor Susana Martinez signed into law a proposal that makes it legal for teens ages 14 to 18 to use consensual sexting. Before, it was a crime and teens could face prison sentences for sending sexts – even when consensual. That is because it was previously roped into the category of child pornography, and the long-term consequences of a criminal record involving pornography convictions are devastating.

While this law allows teens to engage in sexting and not face serious criminal charges, not all sexting acts go without punishment. In some instances, sexting is still a felony.

Why Is Sexting Illegal in Some Instances?

New Mexico does not have a separate criminal statute for sexting. But like most states, they are criminalizing it due to the concerns over safety and privacy. Sexting charges can apply in cases of minors and adults because some prosecutors feel sexting leads to dangerous (if not violent) criminal acts.

To understand why prosecutors apply harsh penalties to those caught sexting, you need to understand the crimes they are preventing or convicting offenders of doing.

Child Pornography

In some cases, sexting is child pornography. While two teens sexting one another is no longer applicable, a 16-year-old sexting 19-year-old nude photos would constitute child pornography.

State and federal pornography laws make it illegal to distribute, create, receive, or possess child pornography with the intent to distribute that image. Knowing that there is that type of image in your possession, even if you have no intention to distribute, is still a crime.

Furthermore, it violates state and federal law to entice a minor into sexually explicit conduct – such as enticing them to sext you.

Special Laws Apply When the Child Is under the Age of 13

Note, the new law in New Mexico that does not punish consenting teens only applies to those ages 14 to 18. A teen that is below the age of 13 sending nude images or explicit content to another (even another teen) can result in a child pornography charge that includes an enhanced sentence of 9 years imprisonment.

Therefore, a teen boy that is 15 years old would be committing a crime to sext with his girlfriend, consenting or not, if she is 13 years old. If that boy were to show his friends any images or content that his girlfriend sent him, he has violated New Mexico Statute 30-37-3.3.

Child Enticement

Child pornography is only one instance where sexting might be illegal. Another is in child enticement. Child enticement laws are equally as harsh as child pornography and include lengthy prison sentences.

Child enticement is an act, conduct, or an attempt to commit an act, that includes a criminal sexual act against a child. In the case of sexting, this includes any child under the age of 14 when teens are involved and any child under the age of 18 if the other party is an adult.

Here is an example of child enticement: a 20-year old boy is dating a 17-year old girl. He encourages her to send nude photographs via text during their sexting conversation. In this case, he is enticing her to commit a criminal sexual act. Had he been 18 years old, it would not be a crime.

Bullying

In most cases, the parties engaging in sexting are consenting. However, there are instances where sexting is used as bullying. Note, while the new law allows consenting teens to sext, non-consenting teens are committing a crime.

One form of bullying that is common with sexting is for one teen to distribute the sext messages to the entire student body by sharing it via mass text. This can include sharing crude messages or nude photographs outright. This is a criminal offense. In this case, the teen distributing the nude photographs could still be charged with child pornography.

Harassment and Stalking

Another instance where sexting becomes illegal is harassment and stalking. Sexting might lead to stalking or harassment, especially if the photographs or text falls into the wrong hands. Some predators use sexting like online messages and dating sites. And in some cases, the stalking can turn into more violent sexual acts later.

What Is the Penalty for Violating a Sexting Law?

The penalty depends on the crime you are charged with. Sexting is not taken lightly by prosecutors. Whether you are charged with enticement or the distribution of child pornography, you can expect the prosecutor to seek maximum penalties.

These crimes carry up to $5,000 in fines and up to six years imprisonment. If you were to create child pornography, then you may face up to 15 years imprisonment and fines up to $12,500. Being in possession of child pornography as an adult can mean 18 years imprisonment and up to $5,000 in fines.

If you were to sext a minor and provide nude photos of yourself, then you could spend up to one year imprisonment and fines of up to $1,000. Remember, if that child is under the age of 13, the penalty increases.

You Need a Lawyer for Sexting Charges

Sexting is not innocent, and not something you can defend alone. If you have been charged on the state or federal level for sexting offenses, you need an attorney with experience handling child pornography, enticement, and related crimes.

Speak with a member of New Mexico Criminal Law Offices today. Schedule a consultation now at 505-375-4671, or contact us online with your questions.