Teenagers have communicated through text messaging to ever since it became a standard feature on cell phones. As smart phones were introduced to the marketplace, taking and sending pictures with text messages became a new form of finding friends and flirting. Some teens even went so far as to send naked pictures of themselves to attract the opposite sex.
Sexting (sending elicit photos through text messages) became controversial not only for the extreme forms of flirtation and exploitation among teenagers, but also for how these seemingly benign acts were prosecuted. Under Texas law, sending or receiving sexually explicit images of minors could be considered possessing or trafficking child pornography. Both crimes are felonies punishable with long jail terms and lifetime registration as a sex offender.
Prosecutors across Texas were confronted with considerable dilemmas stemming from "normal" teen conduct. A high school student could receive an explicit image of a boyfriend or girlfriend, and could forward it to a friend. While this can be viewed as improper conduct, it certainly was not worth punishing so severely. In fact, most prosecutors would drop such cases because the sentences allowed did not fit the offenses committed.
The Texas Legislature recognized this and approved Senate Bill 407, which prohibits minors from "intentionally and knowingly promoting or possessing text messages that contain explicit images of those 18 and younger." The new offense will be punished as a misdemeanor instead of a felony. First time offenders may face a class C misdemeanor, and repeat offenders can be charged with a class A or B misdemeanor.
The new law took effect on September 1st.
There are several defenses available to those charged. Text messages between minors within two years of age who are engaged in a dating relationship at the time of the offense are protected. This is referred to as the Romeo and Juliet affirmative defense. Minors who receive elicit texts (if they did not solicit them) and delete the images within a reasonable time can also raise an affirmative defense. An evolving issue for defendants and prosecutors is what is a "reasonable time". To be safe, an image should be deleted as quickly as possible.
It is still possible to be prosecuted for possession of child pornography for possessing sexted messages, even though the new sexting statute is clearly on point. The legislature did not take away the potential prosecution for possession of child pornography as indicated by its inclusion of a in para material clause. Interestingly, the sexting statute would appear to give someone who is 17 years old the right (if not an obligation) to delete the images while a prosecution for possession of child pornography would potentially prohibit the destruction of the evidence.
Minors charged with violating the new law are ordered to appear in court with their parents. The aim is to steer minors away from reckless behavior and enable them to learn from their mistakes without lifelong consequences. As such, judges can order offenders to complete classes that teach children about the serious, long-term psychological effects sexting can have.
In furthering the theme of rehabilitation, sexting offenses can be expunged on or after a minor's 17th birthday. This will allow them to apply for college without a criminal record.
This article is intended as an overview to Texas' new sexting law and should not be regarded as legal advice. Any questions about how the law shall be applied should be forwarded to an experienced Texas criminal defense attorney.
