The majority of sexting laws are merely interpretations of laws that already exist, namely child pornography (where underage sexting takes place), sexual harassment (when the attention is unwanted and/or comes from someone in a position of power, such as an employer), sexual exploitation (where the case involves a direct manipulation of power, as with a child or a therapist), or anti-bullying legislation (where the sexual texts and photos are used to harm an individual). Some places in the United States or its protectorates have developed legislation specific to sexting, but the majority have not; sexting’s greatest legal presence remains as a part of the application of other laws.
When underage sexting first became an issue, minors who were found with sexually explicit photos or videos of other minors were charged with possession of child pornography, while those who sent these media were charged with distribution of child pornography. While this often seems severe, in the early days of establishing sexting laws, many such cases were intended to make examples of offenders and discourage this practice. In other cases, specifically those circumstances whereby students mass-distributed photos of other students, sexting crossed over into the domain of anti-bullying laws, many of which were still being developed during the rapid rise in the popularity of sexting.
State Sexting Laws
Some states, such as South Carolina and Ohio, have created laws that specifically regulate sexting. South Carolina law applies to those between the age of 12 and 18 and defines sexting as a crime worthy of a misdemeanor; those convicted of sexting will be fined (no more than one hundred dollars) and forced to attend an educational program, detailing the dangers and potential legal ramifications of further sexting. Sexting, under this law, is not considered a sexual offense, despite its sexual nature (Vermont has likewise changed the law to exempt sexting from the category of sexual offenses). Ohio simply bans minors from sexting at all. Several other states, such as California, New Jersey, and New York have implemented legislation that relates specifically to educating teens about the dangers of sexting. This can range from the creation of special school programs that discuss sexting and its use in bullying to forced educational classes for offenders and prohibition on the sale of mobile devices unless information about sexting and its dangers is presented at the time of purchase.
While many state governments have focused on education and reducing sentences for sexters so that minors who commit these offenses are not branded sex offenders and forced to register with a database, many other states have simply rewritten local law so that sexting can carry a harsher penalty. States such as Georgia and Pennsylvania have amended their laws so that mobile devices are now addressed as one of the means by which unlawful and inappropriate content can be distributed; this proviso was unnecessary prior to the digital age.
When both sexters are over the age of 18, their sexting practice is most likely not illegal, unless it involves some special circumstances. In such cases, there are no laws that specifically dictate when and how sexting can be used, but the messages themselves can fall under the purview of other, already existent legislation and can be used to demonstrate that a related crime has occurred.
Sexual Exploitation Charges
Several cases have been reported whereby employers or others in a position of power, such as a district attorney, doctor, or therapist, repeatedly sexted to those beneath them or in their care. The sexting may be a solo act or part of a larger abuse; they may imply that accepting these sexts or reciprocating with the abuser is a constituent of the job or treatment, or that the victim’s employment, healthcare, or therapeutic relationship is at risk if he or she does not comply. This kind of behaviour opens the door for sexual exploitation charges.
Sexual exploitation, according to the United Nations’ Office of the High Commissioner for Human Rights (UNCHR), is “the abuse of a position of vulnerability, differential power, or trust for sexual purposes” or “forced/coerced sex trade in exchange for material resources, services, and assistance”. In these instances, sexting records may be requested in court or when pressing charges, as evidence of a violation.
Sexual Harassment Case
Likewise, sexting can become an important component of evidence in a sexual harassment case. Sexual harassment is defined by the UNCHR as “any unwelcome, usually repeated and unreciprocated sexual advance, unsolicited sexual attention, sexual innuendo… when it interferes with work, is made a condition of employment, or creates an intimidating, hostile, or offensive work environment.” Sexting between coworkers or employers/employees can easily be regarded as sexual harassment, unless both parties are consenting.
While not all sexting laws apply to the exchange of messages between minors, the vast majority do. All laws that refer to sexting exist to protect those who are considered vulnerable in the eyes of the law, so that this activity, which is innocent and fun in the right hands, does not become a tool to harm others.