When people are becoming intimate, it’s common for them to want to communicate frequently using cell phones. This sometimes includes sending nude selfies. But the proliferation of “sexting” or sex-related texts has created a new category of sex crimes. Law enforcement departments across the country are conducting sexting stings to identify predators who specifically target minors.
These behaviors have introduced new legal questions: Is sexting legal if it’s between consenting adults? Can you be arrested for sexting? Berry Law’s experienced sex crimes attorneys have navigated many criminal cases related to sexting.
When considering the possibility of sexting crimes, the most important factors to understand are:
Age of sender and receiver of sexting. Applicable laws often identify ages at which sexting is clearly NOT legal. Sexting with minors is never legal if you are over the age of 19. (See below for more about sexting laws in Omaha and Lincoln, Nebraska.)
Number of people included in sexting. If sext messages are sent and received only by people clearly in a relationship in accordance with legal age limitations, then the sexting is not considered illegal. Forwarding nude selfies or sexually explicit images to others outside of a clearly defined relationship, however, could be considered a sex crime.
Willingness of receiver to receive a sex-related text. The burden of proving the receiver’s willingness to receive sexting material is placed on the sender. In other words, a sender must make sure the age-approved receiver clearly communicates he or she is willing to participate BEFORE sending a sext or any other sexually explicit text message.
Intent of parties. A person may be posing as a boyfriend or girlfriend of the receiver in order to solicit actions and receive sexting in return, and then blackmail the person or cause them embarrassment by forwarding the sexts to others. Actions taken with this intent, if proven, could result in criminal charges.
Past history. If a person has a history of sex crimes, lewd behavior, violence or other potentially related illegal activities, a judge or jury can be more inclined to convict someone of sex crimes or increase criminal and/or civil sentences. On the other hand, first offenses can result in leniency and lesser sentences.
Images or words. Applicable laws are most likely to make the sending and receiving of an image a sexting crime. However, sending and receiving obscene language also can land a sender of sexting messages in jail. Some obscenity laws are misdemeanors and have lesser penalties.
Ultimately, all these factors can be combined to inform the final decision of the court, both in determining whether the sexting does constitute a sex crime – and what the sexting penalty will be.
NEBRASKA SEXTING LAWS
Sexting between two consenting adults isn’t in itself considered a crime in Nebraska. When images shared between two people are then forwarded to others, however, Nebraska laws and federal laws could come into play, with charges such as sexual harassment, stalking, wiretapping or extortion, depending on the intent of the sender.
Theoretically, laws governing adult pornography and obscenity could be used to define dissemination of nude photos or obscene language as a crime. However, electronically disseminated pornography is highly contested in U.S. courts. Pornography in general has been equally admonished by those who believe that it is wrong on moral grounds and defended by those who believe it should be allowed as free speech. There is little to no debate, however, when the pornography involves minors (see below).
Nebraska sex crime laws and federal laws make non-consensual sexual contact of all kinds a crime. Sex crimes include rape, statutory rape, sexual harassment, date rape, and other types of non-consensual sexual contact with or without penetration of the body. Nebraska law includes a statute that specifically prohibits electronic dissemination of child pornography.
SEXTING WITH MINORS IN NEBRASKA
When minors are involved, according to both Nebraska and federal laws, sexting and other forms of sexual contact are clearly crimes. According to Nebraska laws, it is unlawful to:
- Knowingly make, publish, direct, create, provide, or in any manner generate an image of a minor engaged in sexual conduct
- Knowingly purchase, rent, sell, deliver, distribute, display for sale, advertise, trade, or provide to any person an image of a minor engaged in sexual conduct
- Knowingly employ, force, authorize, induce, or otherwise cause a child to engage in sexual conduct
- Knowingly possess with intent to rent, sell, deliver, distribute, trade, or provide to any person any image of a minor engaged in sexual conduct
If convicted of any of these offenses, a person could face up to 20 years in jail and/or a fine. In addition, the offender most likely will be required to register as a sex offender.
SEXTING BETWEEN TEENAGERS OF SIMILAR AGES
In the past decade, some states, including Nebraska, have passed laws specifically addressing teenage sexting. Current laws in Nebraska provide that it is admissible for teenagers no more than two years apart in age to engage in consensual sexting without being accused of a sex crime if the sender is less than 19 years old and the receiver is no younger than 15.
Teens of similar ages can be drawn to sexting as a way of exploring their sexuality, and many people believe it should not be considered a crime. However, before the new laws were passed, penalties under the law for possessing and disseminating such pornography were being met with harsh sentences, from prison time to listing on the state’s sex offender registry. These punishments could inordinately affect a child’s life for decades.
On the other hand, teenagers often are unaware of the potentially damaging consequences when sexting goes beyond the two people in a relationship. The court will often use probation, community service and counseling in teen cases where there is evidence of wrongdoing.
Consider a scenario in which two teens share sexually explicit selfies of one another, then one of them ends the relationship acrimoniously. Out of revenge, the slighted partner sends the nude images to others, hoping to embarrass their former partner. Such dissemination of sexual images is illegal and may open up the potential for charges of distribution of child pornography, sexual harassment, and other crimes.
Proponents of the updated “teen sexting laws” point out that the teens, although they were engaging in illegal activity, should not be treated as adults. The illegal activity, they said, should be seen as a youthful mistake, and an attempt should be made to teach the teens to make better decisions rather than imposing life-altering penalties.
However, not all sexting scenarios can be considered the result of youthful indiscretion. There have been instances in which teenagers have taken nude photos of classmates without their consent, then distributed the images to other students. In some cases, the students have used the photos to blackmail classmates for money or to get them to engage in sexual acts. These cases are subject to more serious punishment and consequences.
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DEFENSE FOR SEXTING CHARGES
Nebraska’s 2009 statute update affecting teen sexting laws included two affirmative defenses available to those who have been charged with sexting crimes. The first is when the maker of the sexting image is less than 18 years old and the image includes no one other than the defendant. The second affirmative defense is when the sender has reason to believe the receiver is willing to receive the image and are at least 15 years old.
In sexting stings, law enforcement officers pose as teenagers and provide an opportunity for adults to solicit and engage in what they believe to be sexual contact with minors through sexting. Such cases must be handled carefully, or they could constitute entrapment by police. However, the law allows for punishment of even attempted sexual acts through sexting.
SELFIE HACKS TO LIMIT SEXTING CRIMES
If you are engaging in legal sexting, it’s virtually impossible to ensure your images will never be shared. However, text message hacks can help reduce the chances photos will be shared in revenge or otherwise co-opted without permission. Both partners should use the same sext message hacks to protect both:
- Use strong passwords
- Delete photos from trash or “recently deleted photos” folders
- Wipe the phone clean if it’s lost
- Don’t store sexting images anywhere in the cloud
- Sext only with someone you know and trust
WHAT TO DO WHEN CHARGED WITH A SEXTING CRIME
If you or someone you know has been charged with a sexting crime, contact Berry Law to explore the merits of your case. If you are approached by law enforcement about alleged sexting activity, remember that you have the right to consult with an attorney prior to answering questions. A Berry Law sex crimes attorney can help you decide what to do next.
