Updated on August 23, 2022
Technology has made electronic communication so convenient that some people have taken convenience to an entirely new level: sending sexually explicit electronic content. If you regularly send sexually explicit messages, photos, or videos via your phone, laptop, or tablet, you may wonder, “Is sexting legal in Texas?”
Many people mistakenly believe that sexting is legal. However, under certain circumstances, you may face criminal charges for sending sexually explicit images, photos, or videos to other people.
Generally, as long as two adults consent to sharing their nude photos or other types of sexually explicit content, sexting is not a crime. However, you may be charged with a crime for sexting with a minor or for sharing someone else’s inappropriate images or videos without their consent.
Do not hesitate to contact a Lampasas County criminal defense lawyer if you are facing criminal charges for sexting in Texas. The sooner you get legal advice, the more likely you are to get the charges dismissed or reduced.
What Is Considered Sexting?
In order to understand what is legal and illegal when sharing images or videos with someone else, you need to know what conduct is considered sexting. The word “sexting” combines the words “sex” and “texting.”
Sexting refers to one person sending sexually explicit text messages, photos, images, or videos to another person through a cell phone, tablet, computer, laptop, or another digital device.
When Is Sexting Illegal in Texas?
While texting is generally lawful when it involves two consenting adults, it can amount to criminal charges under certain circumstances. If you have been charged with a criminal offense related to sexting, do not hesitate to contact a Lampasas County criminal defense attorney.
Here are situations in which sexting is considered a criminal offense:
House Bill 2789 addresses the issue of sending unsolicited suggestive photos. Under this newly minted law, anyone who sends a lewd image electronically to someone who did not explicitly ask for such a photo can be found guilty of a sexual criminal offense. The crime is a Class C misdemeanor, and, if convicted, the perpetrator faces a fine of up to $500.
For the charges to hold, the fact pattern must include one of the following:
The sender sent a picture or video of himself or herself either fully exposed or engaging in a sexual act.
The male sender sent a picture of his covered but aroused genitalia.
The sender of said photo must have sent the electronic image knowingly in order to be charged with this crime. In other words, if he or she misdialed a number and sent a lewd picture to an unintended recipient, that sender may not be held accountable.
Sexting with a Minor
If a person is over the age of 18 and sending sexually explicit messages, pictures, photos, or videos to a minor under the age of 18, that person can face criminal charges for sexting with a minor. You may be charged with a criminal offense for sexting with a minor even if the minor has reached the age of consent (17 years old in Texas).
The exact criminal charges depend on the circumstances of the case, the type of content shared with the minor, and how the minor’s sexually explicit photos or videos are used. If you get caught sending inappropriate photos or videos to a minor, you may be charged with distributing harmful content to a minor, codified in Texas Penal Code § 43.24.
Sexting between Minors
While many people, including minors, believe that sexting between minors is not illegal since it involves two minors who consent to sending sexually explicit materials, sexting is a criminal offense if it involves minors who are more than two years apart in age. For more information about consent between minors, read about the Texas Romeo and Juliet law.
Sharing Inappropriate Content without Another Person’s Consent
If someone else sent you their sexually explicit photos or videos, you might face criminal charges for sharing or distributing those photos or videos without their consent.
A person may share inappropriate photos or videos depicting another person in order to harass that person. 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.
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.
For revenge porn charges to hold, it is necessary to prove the following elements of the charge:
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.
Sexting and Child Pornography Charges in Texas
Most criminal cases involving sexting are based on child pornography charges. Particularly, a person who engages in sexting with a minor may face criminal charges for possession or promotion of child pornography found in Texas Penal Code § 43.26.
If you keep the photos or videos received from a minor when sexting, you may be charged with possession of child pornography in Texas. For this reason, if you received unsolicited photos or videos of a sexual nature from a minor, you should delete them as soon as possible to avoid criminal charges.
If you knowingly access or possess child pornography with the intent to view it, you may face charges for possession of child pornography. Child pornography is defined as any material depicting a minor under the age of 18 engaging in sexual conduct.
Child pornography possession charges are classified as a third-degree felony, punishable by up to 10 years of incarceration and a maximum fine of $10,000. If you’re convicted a second time, the charges can be elevated to a second-degree felony, which carries a maximum prison sentence of 20 years. Any subsequent convictions are punishable by up to 99 years in prison.
The offense of distributing, producing, and publishing child pornography is a more serious crime than possession of child pornography in Texas. You can be charged with the promotion of child pornography if at least six copies of child pornography are found in your possession.
What Is the Difference between Sexting and Indecent Exposure?
Sexting is the act of sharing sexually explicit content with others electronically. Indecent exposure, on the other hand, is the act of exposing oneself to a stranger in public. So, in a way, sexting is the electronic equivalent of indecent exposure.
Indecent exposure is a more serious offense than sexting. It is classified as a Class B misdemeanor that is punishable by jail time of up to 180 days and up to $2,000 in fines. Read this article about indecent exposure charges to learn more.
When Should You Contact a Criminal Defense Lawyer?
Do not hesitate to contact a skilled criminal defense lawyer if you have been accused of a criminal offense, such as possession of child pornography, after engaging in sexting. It is essential to speak with an attorney to find the most appropriate defense strategy in your particular situation.
You may be able to avoid a conviction if your lawyer can prove that you did not intend to commit a crime. If you did not know that you received a sexually explicit photo or video depicting a minor, an attorney might be able to successfully defend you to fight against the charges.
Being convicted of a sex crime may result in your registration as a sex offender, which is why it is best to retain a criminal defense lawyer to protect your rights, future, and freedom. Contact a Lampasas County criminal defense lawyer today to get started on your defense.
Consult with a Lampasas County Criminal Defense Lawyer Today
While consenting adults are allowed to send each other whatever—otherwise legal—photos of themselves they desire, sending unsolicited lewd photos is an affront that the law decided it was time to address. If you have been charged with a digital crime, you need professional legal counsel on your side.
Contact our skilled and knowledgeable criminal defense lawyers at The Law Office of Brett H. Pritchard to discuss your unique case and determine the best defense strategy in your situation. Our lawyers may be able to help you avoid a sexting-related criminal conviction. Call (254) 781-4222 or contact us online to obtain a FREE case evaluation.