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Can Sexting Be a Felony?

By Christopher Coble, Esq. on September 19, 2017 | Last updated on March 21, 2019

With increased access to smartphones with cameras, and limited access to good decision-making skills, teens have turned sexting into a serious issue that parents, educators, and sometimes the police need to deal with. And state laws, prosecutors, and courts have turned sexting into a serious criminal offense that teens may be left dealing with for the rest of their lives.

The Washington State Supreme Court last week upheld a conviction for distribution of child pornography, even though the defendant was 17 at the time, has Asperger's syndrome, and the photo he sent was of himself. The crime is a felony, requiring the teen to register as a sex offender.

Sexually Explicit Selfie Statutes

Washington state law prohibits "dealing in depictions of a minor engaged in sexually explicit conduct," and defines sexually explicit conduct as "[d]epiction of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer." That was the statute under which T.R. (whose name is being withheld since he was a minor at the time of the offense) was convicted.

According to the Stranger:

The case in question dates back to 2013. That year, a 17-year-old boy named texted an unsolicited photo of his penis to a 22-year-old woman who previously worked for his mother. The teenager, who has Asperger's syndrome, also sent her a text that said "Do u like it babe? It's for you. and for Your daughter babe-Sent From TextFree!" The woman reported the texts and a series of harassing phone calls to the Spokane County Sheriff's Office.

Felony Sexts

In a 6-3 decision, the state supreme court held that the legislature intended to "destroy the blight of child pornography everywhere, from production of the images to commercial gain" and that includes teens who take pictures of themselves. While the court declined to extend the ruling to cases that involve two teens consensually sexting each other, commentators are worried that's exactly what will happen. The three dissenting justices were worried as well, noting that by interpreting the law to cover even children who take their own photos, "we are subjecting all children to felony prosecution."

Washington isn't the only state to apply felony child pornography laws to teen sexting. So teens and their parents must take the issue seriously or face serious consequences.

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