The state of Florida enacted a statute designed to protect minors from the potential harm that stems from “sexting.” Sexting in Florida is a crime only if the image in issue is electronically distributed between minors. Sexting, in this context, does not refer to words. Instead, sexting in Florida means exchanging or sending photographs of another depicted in the nude or engaged in sexual activity. In Florida, a minor is any person who is younger than eighteen. Therefore, adults can exchange nude photos to whatever extent they desire, provided that the photos do not depict a minor. No criminal charges for sexting would issue against two consenting adults who share intimate photographs or videos of each other.
The issues involved in sexting are complex. On the one hand, society must protect the sanctity and innocence of youth by passing laws designed to stop people from sending sensitive or embarrassing photos or videos depicting a child. The victim of sexting, that is, the person shown in the photograph or video, might have only intended to send it to the original recipient. However, that individual might “show off” and distribute the photo among friends. But, once the photo has left the control of the recipient, there is no getting it back. Therefore, the subject or victim of the photo could suffer great indignity, embarrassment, harassment, or worse for one moment of indiscretion.
The same goes for the minor who sent the “sext” message to another. Florida’s legislators understand the quandary and carved out an exception for teens who share messages with each other. Instead of prosecuting the offenders for child pornography, which is at a minimum a third-degree felony, Florida law now allows for a person to face civil infractions in lieu of criminal charges for sexting. Furthermore, the statute allows a child to have an absolute defense to an accusation of sexting if the teen abided by the rules explained in the statute.
How Sexting Laws Effect Adults Versus Teens
Florida law separates sexting and distribution of child pornography by a very thin line. Florida’s sexting laws only apply to minors. In other words, the criminal conduct is sexting when one minor sends the suspect message to another minor. Conversely, the charges of possession or distribution of child pornography could apply when a person who is eighteen, yet still in high school, send a photo of a minor depicted in the nude or while engaged in a sex act, to a minor. The distinction is one of form rather than substance, especially when high school students who are in the same school or even class are involved.
Florida Statutes Section 847.0141: Florida’s Sexting Law
Under §847.0141, the Florida legislature defines sexting as the knowing transmission or dissemination of electronic images that shows a minor in the nude or while posed in the act of a sexual nature from one minor to another. Under the statute, the sender and the recipient have violated the law.
Notwithstanding, §847.0141 carved out an exception to the rule. The exception protects children who did not want to receive the sext message or was not the intended recipient of the explicit image. A minor who receives a sext message and who deletes it as soon as possible and takes affirmative steps to report the existence of the message to a teacher, parent, guardian, or law enforcement officer did not violate the law. The minor must not have forwarded the message to any other person except under the direction of law enforcement or another authority figure.
A minor who knowingly engages in sexting under §847.0141 will only be cited for a civil infraction and not a criminal violation for the minor’s first offense. The minor must pay a fine of not more than $60.00, perform at least eight hours of community service, and must also attend an educational class that discusses the dangers of sexting. A child may contest a law enforcement officer’s decision to issue the civil infraction.
The statute authorizes the police to issue only one citation to an offending child. A child charged with a second offense of sexting faces a first-degree misdemeanor charge. The minor could face a third-degree felony for sexting if the child was convicted on two previous occasions for violating §847.0141.
Transmission of Child Pornography
Florida statutes §847.0137 states that transmitting an image showing a minor in the nude or engaging in sexual conduct is a third-degree felony. A teenager could be convicted of transmitting child pornography if the teen is eighteen or older and sends an image of a minor that shows the child in a state of nudity or committing a sexually explicit act to another adult or to a minor. Section 847.0137 applies to people who reside outside of Florida and transmit an image or video of a minor to another person in Florida. A conviction under this section is a third-degree felony and is punishable by a prison sentence not to exceed five years. However, related crimes with more egregious behavior could result in a prison sentence of up to 30 years.
Sexting Could Violate Federal Law
The state of Florida has expressed a vested interest in protecting its youth. The United States government shares that interest as well. Consequently, the PROTECT Act of 2003, starting at 18 U.S.C. §1466A criminalizes producing, distributing, receiving, possessing, or possessing with the specific intent to distribute a visual depiction of a child committing a sexual act. Similarly, 18 U.S.C. §2251 prohibits allowing or causing a minor to participate in a sexual act with knowledge or intent that the act will be recorded.
Using a computer, mobile device, tablet, or other electronic means to send, receive, distribute, or reproduce images of a minor committing a sexually explicit act or is otherwise child pornography is a federal crime. Additionally, promoting child pornography or soliciting child pornography is also a crime under 18 U.S.C. §§2252 and 2252A.
Federal Criminal Penalties for Sexting
Prosecutions of juveniles in the federal criminal justice system are rare. Federal law expresses a preference that individual states prosecute juvenile offenders. Therefore, federal prosecution of sexting, as defined under Florida law, is highly unlikely. However, an adult could face anywhere between fifteen and 30 years of incarceration depending on the nature of the offense.