What is Sexting?
Sexting is the act of sending sexually explicit messages or photos using mobile devices, such as cell phones. Though sexting may appear to be an innocent act at first glance, it can have severe legal consequences, particularly for minors. The vast majority of sexting cases involve explicit messages sent between teens or young adults.
Because digital technology is so prevalent in the lives of young adults, sending messages to one another that include nudity or sexual contact is actually quite common. In fact, one survey found that 80% of Washington youth use cell phones to communicate, and one in five teens has sent or received a nude image. The same survey revealed that the prevalence of sexting among teens has substantially increased over the years, and charted a sharp increase from 2005 to 2007.
Because phone cameras have become so commonplace, youths no longer need to use a separate camera to capture images of sexual activity. Once the images are on the phone , they can be sent to any number of recipients in a matter of seconds. Even with the best of intentions, nothing guarantees that the recipients will not then share the inappropriate image, sometimes in the most public way possible.
Actually, the only guarantee is that courts view sexting amongst minors as a serious crime, and one that is worth punishing. In many cases, the action of spreading images is considered harassment. However, many jurisdictions take the position that the original sender is equally liable because they were responsible for taking the initial photo and sharing it with someone else.
Some policymakers are attempting to change the way that sexting is punished, but until the laws are changed, teens engaging in this activity can be charged with felonies, and the criminal penalty for that is a maximum of five years imprisonment and a fine of up to $10,000. That said, juvenile courts generally impose markedly less harsh sentences. Still, the state takes such cases very seriously.
Overview of Washington’s Sexting Laws
Washington State’s criminal code contains a sweep of laws that govern the transmission of sexual photographs. These laws outline severe penalties for those convicted of Sexting, but the state also provides some leniency and room for judicial discretion. Washington makes it a gross misdemeanor to transmit a photo or video of an intimate place depicting another person, unless you have the other person’s consent. For example, having sex with your girlfriend and filming her face without asking her permission would be considered sexting. So would taking a photo of another person’s unclothed body parts without their consent. Providing the other person with an apparent means of seeing the photo is also illegal. You take a picture of your girlfriend’s breasts, text it to your phone, and then somehow get her to see the text—that would also be sexting. This restriction extends to photographs of the immediate family members. So, if you are having sex with your mom and share a semen-drenched cell phone with her, you could be charged with Sexting.
Sexting includes more than just photos and text messages. Images, videos, and sounds can all be considered under the Washington Sexting laws. Any transmission of these images in which the other person has a reasonable appreciation that the content is sexual could subject the sender to prosecution. This means that posting another person’s nude photo to a newsgroup without their consent, or sending a photo of an array of dildos to your neighbor could get you prosecuted under the Washington law. Schools can prosecute Sexting as long as the photo is transmitted on or near school premises. This would include two students sending sexually explicit photographs to each other via a cell phone while on school premises. While the State takes the view that high school teachers should not have access to their pupils’ cell phones, State arguments have been rejected and the teacher’s views have become less important than before. In the event that there is a sex crime alleged that creates a problem for a particular school or school district the Schools and the Cities can prosecute in the absence of legislative prohibitions.
There are a few exceptions to the strict liability that governs Washington’s Sexting laws. Under RCW 9.68.130, you are protected from criminal liability when you intentionally send a sexually explicit photo as a result of being a victim of Sexting. The statute protects victims in a few ways. First, if you picture or record a sexual act between you and someone else and then get rid of the photo with the intent to harm another, it is not Sexting. Your victim will have to show that you meant to inflict as much harm as possible on the other person. Second, if you receive a sexually explicit photo from someone else you have the right to destroy the photo without first alerting the police, and that won’t count as Sexting. You also are not obligated to report the Sexting to the police. However, once you destroy the material with the intent to harm another, the Sexting dynamic shifts and you become the potential defendant. Third, you cannot be prosecuted for Sexting if you attempted to gain the other person’s consent to transmit the photo. Like the many layers of sexuality, Sexting and Sexting laws have unexpected dynamics. So be alert and learn how the laws work in this area before sending your next digital photograph.
Legal Penalties for Sexting
Under Washington State statutory law, any person who has attained the age of 18 years, uses a computer or other electronic device to knowingly send, receive, or accept an electronic communication to a person under the age of 18 is guilty of a class C felony. An adult who engages in texting and sexting in this manner may be prosecuted for communication with a minor for immoral purposes.
Depending on the severity of the allegations, charges can range from communicating with a minor to first-degree sexual abuse of a minor. In Washington State, minors who engage in sexting might face civil consequences. If a child is under the age of 18, authorities may remove him or her from school and place them in detention or protective custody.
The Federal government has taken steps to address sexting by minors in schools. For example, the School Safety Internet Act (SISA) enables the United States Department of Education to issue state grants for education programs designed to prevent student digital abuse. Pursuant to SISA, the U.S. Department of Justice is responsible for developing and disseminating informational materials regarding digital abuse which are made available, through the Office of Safe and Drug-Free Schools, at no cost to local educational agencies, states and other persons.
From a civil standpoint, minors who are convicted of sexting may face sanctions by the courts. A juvenile adjudicated for a serious crime such as felony sexual assault, may be adjudicated within the juvenile court system or in an adult criminal court.
Sexting and Minors
Sexting laws in Washington apply to minors, even if you and the other party are both minors. A minor who sends, or is caught with an illegal picture, can be charged with a gross misdemeanor. This means that you are not tried in adult court. While there is no mandatory minimum for time spent in jail, there is a maximum: 364 days in jail, and/or a maximum fine of $5,000 .
Both parties involved in the sexting process are charged. The person who received the photo, and then forwarded it, can be charged as well. Both parties can face criminal charges for their involvement in sending or forwarding a picture of a minor in sexual acts.
Prevention and Education
George W. Bush Elementary School counselor Brenda Dodge hopes a newly added sexting assembly will help students better understand the legal consequences of inappropriate behavior. The assembly, a collaborative effort between the school and the Pierce County Sheriff’s Department, was presented to 4th- through 6th-grade students in late September 2011. It featured Sheriff’s Detective Ed Troyer and Deputy Andy Bunney, who explained to students what exactly qualifies as sexting — sending sexually explicit photos or messages via cell phone — and illustrated what punishment a conviction can lead to. Dodge said Tuesday that newer technologies such as smart phones are making it easier for children to engage in sexting, which a few years ago was less common.
"I think it’s an increase in technology and the students getting the smart phones that have the ability to send those pictures and transfer them to their friends," she said. "We’re seeing more and more incidences of sexting."
Sheriff’s Detective Ed Troyer said Washington State laws on child pornography and indecent exposure haven’t kept up with the risks associated with modern technology. There are felony penalties that hang over individuals who are convicted of taking or transmitting photos that exploit minors. Deputy Andy Bunney, also with the Sheriff’s Office, said many of the kids don’t understand the permanence of sending a messages on apps such as Snapchat or Vaporstream, which can allegedly self-delete after a set time. "Kids think it goes away after a period of time, but it doesn’t," Bunney said.
On top of that, Washington’s criminal law forces any convicts to register as a sex offender for a period of time, which Bunney said he can tell has frightened students. It can also have a significant impact on that child’s life, even if the circumstances were relatively minor, he said.
"Just because someone looks at a picture doesn’t make them a pedophile," Bunney said.
Dodge said she’s received mixed feedback from parents about the assembly. Some think the law is a bit extreme, though most are in favor of it and glad the school is providing this type of education. "The comments range from, ‘Why are you talking about this?’ to, ‘I’m so excited you’re talking about this,’" she said. "The parents see a value in it because they’re not always aware of the pressures that kids have in school."
Resources and Legal Counsel
For those in need of additional resources and legal support regarding sexting-related cases, various legal aid organizations and hotlines provide assistance statewide. The following are examples of such resources: Take Back the Tech is a global project to prevent violence against women and to empower women by using technology. They provide online support for all forms of technology abuse, including sexting. Legal Counsel for the Elderly provides free legal counsel by telephone for complex legal issues for persons 60 years or older. They assist with helping seniors with issues that go beyond the basic advice services offered by other agencies. Washington State Coalition of Sexual Assault Programs (WCSAP) is a nonprofit organization with multiple objectives including , but not limited to: increasing access to available victim services, sharing resources, conducting research, and helping victims to become more aware of their legal rights through advocacy work. WCSAP also offers a confidential 24-hour hotline. Safe Internet Surfing is a resource for listing national Internet Safety hotlines for identity theft, online frauds and scams, and adult services. SafetyNet is a national organization that raises awareness about teen dating awareness, provides resources for preventing abuse, and has an online chat hotline.