Sexting under Florida Law
Experienced Defense Against Sexting Charges In Orlando and Central Florida
What Is Sexting?
Sexting is just a term for sending nude/explicit photos, messages or videos generally using a cell phone or a computer. It has increased exponentially as the use of cell phones and social media has exploded in our society. Sending a nude image of one’s self (a nude “Selfie”) or even text messages discussing sex acts, would fall into the category of sexting.
Can A Child Be Charged For Sexting?
In today’s world where so many devices (think cell phones, tablets, home computers, gaming devices) that are capable of taking pictures and videos, and of storing and sending them as well, are in the hands of people under the age of 18, there are questions of whether minors sending/possessing images or videos of certain types of nudity can cause the minor to be charged with any crimes. The answer is yes, and the Florida Statute that covers the issue/legality of minors (people under the age of 18) sexting is 847.0141. It makes it an offense for a juvenile/minor to either:
- Use a computer or other device to send to another minor any picture or video depicting nudity that is harmful to minors (“harmful to minors” is defined under the law as: any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it: (a) Predominantly appeals to a prurient, shameful, or morbid interest; (b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and (c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors)
- Possess an image or video that was transmitted by another minor where it depicts nudity that is harmful to minors.
There’s an exception to the possession offense for juveniles, that states that if the minor accused of possession satisfies all three items below, he or she doesn’t violate the statute:
- The minor did not ask for the image that was sent to him/her;
- The minor took reasonable steps to report the image to a parent/guardian, or to a school or law enforcement official;
- The minor doesn’t send the image onto any other minor.
Sexting: Penalties and Consequences
The penalties for sexting are as follows:
- For a first offense it is a non-criminal offense that would result in a citation; the citation can be satisfied without having to come to court with some community service, fines and completing a cybersafety class.
- For a second offense it is a second degree misdemeanor (for adults that would carry up to 60 days in jail and up to a $500 fine; that would not be a juvenile punishment)
- For a third or subsequent offense it is a third degree felony (for adults that would carry up to 5 years in prison and up to a $5,000.00 fine, though again, that would not apply to a juvenile)
While the penalties for adults don’t apply to juveniles, it should be noted that these would still be criminal charges that the juvenile is facing, and would have to come to court to answer for. Juveniles could be sentenced from anything as low as an admonishment from the Judge up to a time in the Juvenile Detention Center or being placed in a juvenile program. For any parent of a child in this situation, or any such child, it is important to contact an experienced criminal defense attorney like attorney David Hill for assistance in these types of cases.
Can A Child Be Charged With Child Porn For Sexting?
The penalties above are just for pictures or videos of nudity, but a juvenile can be further charged if they send or possess depictions of sex acts by children (these would be covered under the law dealing with possession of child pornography. Also, juveniles can additionally be charged under the stalking statute if they send these types of images.
Can Adults Be Charged With Child Porn For Sexting?
Obviously, two consenting adults can send each other nude photos or videos of themselves to each other. However, if an adult sends images that are of a sexual nature depicting minors they are subject to the laws dealing with sending or possessing child pornography. Also, if one adult sends sexually explicit photographs/videos to another without the other’s permission or consent, they can be charged with stalking (if it is repeated) or harassment.
It is important to note that just because a cellphone is the device used to take, send or store images that are illegal, it still would fall under the child pornography statutes as a “device”. Sometimes the perception is that child porn is illegal if it is stored or sent from a laptop or desktop computer. Today’ smartphones are very advanced and powerful computers, so that distinction doesn’t exist. Even if a person is sending/receiving illegal images/videos using a basic (not smart) cellphone, it is still considered a device and if it is in your possession with illegal images on it you can be charged.
