When does sexting become criminal? Find out with this thorough look into sexting written by our senior law clerk, Gabi!
IntroductionWhen it comes to laws surrounding sexting, a relatively new phenomenon, Florida is ahead of the curve. Florida is one of few states that have implemented laws specifically addressing the issue of teenagers sexting. Sexting, or sexual texting, is commonly known as the transfer of sexually explicit images or conversation between two or more parties over text, email, or even social media apps. Sexting has become increasingly popular as the Internet has progressed, and has seen a recent spike due to COVID indoors-restriction. Sexting can be a fun and flirty way for consenting adults to connect in the digital age, but when it comes to sexual messages between teenagers, Florida law can impose severe penalties.
What is Florida’s Sexting Statute?Florida Statute 847.0141 discusses sexting and its penalties. It states that a minor commits the offense of sexting if they knowingly:
Use a computer, or other device used to transmit data electronically, to transmit or distribute to another minor any picture or video of any person which depicts nudity and is harmful to minors.
Possess a picture or video of any person that was transmitted or distributed by another minor which depicts nudity and is harmful to minors.
What is “Nudity”?According to Florida State 847.001(9), nudity refers to:
the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or
the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or
the depiction of covered male genitals in a discernibly turgid state.
The statute specifically provides that “a mother’s breastfeeding of her baby does not under any circumstance constitute ‘nudity,’ irrespective of whether or not the nipple is covered during or incidental to feeding.”
When is Content “Harmful to Minors”?According to Florida Statue 847.001(6), harmful to minors refers to “any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
predominantly appeals to a prurient, shameful, or morbid interest;
is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material and conduct for minors; and
taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
Interestingly, this provision also provides that “a mother’s breastfeeding of her baby is not under any circumstance ‘harmful to minors.’”
What are Exceptions to the Sexting Statute?The statute provides that a minor does not violate the statute if all of the following apply:
The minor did not solicit, or ask for, the picture of video.
The minor took reasonable steps to report the picture of video to the minor’s legal guardian, a school official, or law enforcement.
The minor did not further transmit or distribute the picture or video to another person or party.
Sexting PenaltiesA minor who violates the statute can suffer differing criminal penalties based on how many offenses committed.
A first violation is non-criminal. As a penalty, the minor has to sign and accept a citation indicating a promise to appear before the juvenile court. Instead of appearing in court, the minor can complete 8 hours of community service work, pay a $60 civil penalty, or participate in a cyber-safety program if a program is availably locally. They must satisfy any penalty served to them within 30 days after receiving the citation.
A second violation after the minor has already been found before to have committed a noncriminal violation for sexting commits a first-degree misdemeanor.
Three or More Offenses
A third, or subsequent violation after the minor has been found already to have committed a first-degree misdemeanor for sexting commits a third-degree felony.
More Information About the Sexting CitationThe citation must be in a form used by the issuing law enforcement agency, must be signed by the minor, and contain all of the following:
The date and time issued.
The name and address of the minor cited.
A thumbprint of the minor cited.
Identification of the noncriminal violation and when it was committed.
The facts constituting reasonable cause.
The specific section of the law that was violated.
The name and authority of the officer citing the minor.
The procedures the minor must follow to contest the citation or comply with the required penalties.
If the citation is contested and the court finds that the minor committed a noncriminal violation under the sexting statute, the court can order the minor to perform 8 hours of community service, pay a $60 civil penalty, or participate in a cyber-safety program, or any combination of those penalties.
Tallahassee Sex Crime Defense AttorneySexting, or any other sex crime, can carry serious consequences, including a permanent criminal record that can follow you or a loved one around for the rest of your lives, affecting your careers, housing prospects, and availability to receive public assistance. If you or a loved one has been charged with a sex crime, contact a Tallahassee criminal defense attorney as soon as possible to explore your options and discuss your case. Don Pumphrey and the member of the legal team at Pumphrey Law Firm have a wealth of experience representing those charged with sex crimes and know how to craft the defense best suited to the case of you or a loved one. Call (850) 681-7777 or send an online message today for an open and free consultation with an attorney in our legal team.