We Are Both Adults: Is Sexting Really Illegal?
The topic of sexting – sending sexually explicit photos electronically – has received a lot of attention recently, and it can be confusing to sort out the legal implications. As our lives seem to center more and more on our electronic devices, the issue of sexting has become even more relevant. Let’s take a closer look.
The Legality of Sexting
The advent of the smartphone did not create the issue of distributing sexually explicit photos (or videos) of oneself or another. Still, it certainly has made it more convenient to do so. The legal issue of sexting (in all its varied forms) is the ease with which someone can be exploited, and this legal concern focuses mostly on children (for obvious reasons). If an adult has a sexually explicit photo of a minor on his or her phone (or anywhere else), it can lead to a charge of Possession or Promotion of Child Pornography. If the person with the photo and the person in the image are both adults, it is a different matter.
Distribution of the Explicit Photos
If the parties involved are all adults, the only legal issue comes down to how the sexually explicit material is distributed. For example, if the person in the photo or video is engaged in a sexually explicit act or is exposing body parts that are generally considered private, it is illegal to disclose the material to anyone else without the consent of the person in the picture or video. This charge is called Unlawful Disclosure or Promotion of Intimate Visual Material, but it is commonly referred to as revenge porn – and it is a Class A misdemeanor.
The elements of the charge include:
The photo (or video) is considered an intimate image.
The subject of the photo (or video) has the reasonable expectation that the photo will remain private.
The picture is distributed (in some manner) without the consent of the subject
Having a private photo – that the subject reasonably expected to remain private – distributed against one’s will can be personally damaging, and the law addresses this fact.
When someone posts or otherwise shares a picture of someone else in a state of undress or a sexually explicit pose, it is often done to damage the subject’s reputation. When a relationship deteriorates to the point that one of the parties is willing to go to the length of sharing an intimate photo (which is usually a testament to the couple’s former closeness), it is not difficult to understand why it is called revenge porn. In other words, while it is not illegal to have a sexually explicit picture or video of a consenting adult, it is illegal to share that picture or video without the subject’s express consent.