The Legality of Sexting in California

By San Diego Attorney on November 21, 2020

Since the invention of Craigslist, the internet has hosted numerous posts surrounding users’ romantic and sexual interests. While some instances do lead to genuine and respectful connections, others can devolve into inappropriate and even nonconsensual messages. The further expansion of cell phones, social media, and dating apps led to the development of “sexting,” the sending of intimate and sexual messages through digital devices. This unique form of communication has become commonplace in modern society, but California courts are slowly coming to terms with how to handle situations when sexting involves criminal actions.

The Legality of Sexting

When sexting occurs between consenting adults, sexting is perfectly legal under California law. If each party agrees to send nude videos, sexually explicit videos, or flirtatious messages, then there are no regulations against it. However, there are several ways for sexting to become a criminal act and result in significant charges.

Annoying or Inappropriate Messages

For one, sexting requires the consent of all individuals involved. If one person does not consent to these messages, then the other person should immediately stop sending messages. In addition, consent should be provided before the messages are sent and be clearly outlined between both parties. If someone continues to message an individual nonconsensually, then he or she may be guilty of harassment.

This is because California law defines harassment under Penal Code 646.9(e) PC as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” Inappropriate and nonconsensual messages can provide the basis for a stalking charge, in addition to an annoying phone call charge.

Revenge Porn

In addition to blasting sexual messages or images without consent, sexting can also become illegal if one party shares private images or videos he or she received without the owner’s consent. This often occurs after a breakup, as one member may be angry and choose to leak their ex’s nudes, but this is a clear violation of California’s Revenge Porn Laws, or California Penal Code 647(j)4 PC, and can result in up to six months in a county jail and $1,000 fine for a first offense. In addition, a second offense can double the penalties and, if the case involves a minor, it becomes a case of child pornography, which can be charged as a misdemeanor or felony and can require the defendant to register as a sex offender.

Crimes Involving Minors

Anytime an adult sends an inappropriate or sexual message, image, or video to a minor, it is illegal and can result in various charges:

• If an adult sends a lewd message to a minor, it is a violation of California Penal Code 288.2 PC, or “Harmful Matter Sent With Intent to Seduce a Minor.”
• If an adult receives a sexually explicit image or video from a minor and keeps it, it would be a violation of California’s Revenge Porn Laws.
• If an adult offers a minor money in exchange for sexual activities, it can lead to a charge of solicitation of a minor.

California law has very strict laws about interactions between adults and minors and will take any act of sexting with someone 17 years old or younger extremely seriously. Even in cases where sexting occurred between two minors, if one of them is 16 or 17 years old, he or she can be charged in an adult court instead of a juvenile court. However, it is possible for these cases to remain in juvenile court, which will have lighter punishments, but the defendant’s parents should still seek strong legal counsel to form a defense.

Contact a Diligent San Diego Defense Attorney Today

California courts are steadily catching up to the digital age and are rapidly developing new internet crimes to charge people with. However, these laws are not clear-cut, and, with the right attorney, you may be able to build an aggressive and thorough defense strategy to protect your future. If you have been charged with an online sex crime, including harassment, revenge porn, or crimes against a minor, you should immediately contact a San Diego sex crimes defense attorney at jD LAW. Our lead attorney is a former LAPD investigator and has more than 30 years of legal experience. He understands the criminal justice system inside and out and can immediately begin working on your case to have your charges reduced or dismissed. To schedule a free consultation, call our firm at (760) 630-2000.