Explaining sexting laws in California

Cell phones are everywhere these days, so “sexting” and sexting laws have become a hot topic in the media.

What is “sexting?” Sexting refers to the act of sending a nude or revealing photo via the text messaging feature of a cell phone.

As we’ve seen with current events like politician Anthony Weiner’s recent sentencing for illicit contact with a minor, sexting isn’t just innocent fun. When done in the wrong circumstances, it can land you in hot water.

Here’s what you should know about sexting and sharing sexual images online and via your cell phone.

Sexting among adults is legal in California, if it is consensual

If a sexual or suggestive picture of an adult is shared among consenting adults in the State of California, that is perfectly legal.

However, generally speaking, it is illegal to electronically share sexual images of a person, taken without their knowledge or consent. In some circumstances, this could be considered “unlawful peeking” or an “invasion of privacy” under California law. Let’s consider three possible scenarios:

Scenario 1. Mary, 23, sends Pete, 25, a suggestive photo attached to a text message to celebrate their anniversary. This is legal.

Scenario 2. Walking past his neighbor’s house, Pete catches a glimpse of his neighbor changing clothes. He walks onto his neighbor’s property and observes this up close. This could be “unlawful peeking,” a violation of California Penal Code 647(i).

Scenario 3. Mary is showering in a closed-door bathroom, where she feels she has a reasonable expectation of privacy. Without her knowledge, Pete surreptitiously cracks the door to the bathroom and films her. This could be an invasion of privacy, a violation of PC 647(j)(1).

In the first scenario above, all parties involved had reached the age of consent and had knowingly agreed to the photos being taken and shared. In Scenarios 2 and 3, the person being observed or photographed did not consent to the photos or video being taken.

But what happens if someone agrees to have sexual images taken of them, but does not consent to sharing them?

California’s ‘Revenge Porn’ law

In 2013, the State of California officially criminalized “revenge porn,” otherwise known as nonconsensual pornography.

What is “revenge porn?” This is when an individual initially consents to sexual images being taken of him or her with the expectation that they be kept private. Then, another party shares the images without the individual’s consent.

The legal definition of revenge porn has five parts:

  1. This must involve an image of the intimate body part of another identifiable person (genitalia, anus or breast), or an image of that person engaged in sexual intercourse, sodomy, oral copulation or masturbation.
  2. One party intentionally distributes that image.
  3. There was an understanding between the distributor and the subject of the photo that the image would remain private.
  4. The distributor knows or would reasonably expect that the distribution of the image will cause the person serious emotional distress; and
  5. The subject of the photo suffers serious emotional distress.

Let’s consider two scenarios here:

Scenario 1. Mary, 23, ends a romantic relationship with Pete, 25, and the breakup is acrimonious. Pete has a number of sexual images of Mary, which he sends to Mary’s mother following the breakup. Pete could be found guilty of a violation of PC 647(j)(4).

Scenario 2. Pete and Mary break up, and in an act of retaliation, Pete posts a photo of Mary in a bathing suit, captioned “Fat Hog,” to Reddit. Because this image does not depict a visible intimate body part or a person engaged in sexual intercourse, it cannot be revenge porn.

Like the “unlawful peeking” law above, there isn’t much current case law related to California’s revenge porn law. This means that there is a lot of nuance into how they will be interpreted in a courtroom, and there is a lot of open room to mount legal defenses against this.

For example:

Scenario 3. Pete and Mary break up, and it is acrimonious. While sending an email to his office, Pete accidentally sends a sexual image of Mary, named similarly to his intended image, to his coworkers. Because Pete did not intentionally distribute that image, this might not be revenge porn.

Above, we’ve outlined three common criminal charges that can be brought against adults who are sexting or sharing sexual images online:

  1. Unlawful peeking, or “peeking while loitering”
  2. Invasion of privacy
  3. Nonconsensual pornography (“Revenge porn”)

What are their penalties?

Penalties for invasion of privacy and revenge porn charges

Unlawful peeking and invasion of privacy are typically prosecuted as misdemeanors within the State of California. This entails:

  • Up to 6 months in county jail and/or,
  • A fine of up to $1,000.

If the victim in the case was a minor, those penalties can double. It’s often possible to receive little or no jail time for this (known as summary probation), so we would strongly recommend working with a lawyer to explore all of your legal options if you have been charged with either of these.

Revenge porn is also treated as a misdemeanor for first-time offenders. Those penalties can double if you have been convicted once before of revenge porn or invasion of privacy, or if the subject in your photos is a minor. In this case, this would also qualify as child pornography, which carries the potential of significantly harsher penalties.

A photo of a police car

Sexting with teenagers is illegal in California

We’ve covered a number of situations that adults might come across when sexting, but how does it work in situations where one party is under 18?

In short, it’s illegal. It’s against the law in California to possess, produce or distribute “obscene matter” depicting children younger than 18. This would be a violation of PC 311, the state’s child pornography law.

In cases where both parties are under 18, state courts have been known to show some leniency. Two more situations:

Situation 1. Tonya, 16, sends Pete, 25, a nude photo of herself via text messaging, and Pete keeps it on his phone. This is a clear violation of PC 311, and Pete would likely be charged under those statutes.

Situation 2. Tonya, 16, sends Mike, 17, a nude photo of herself via text messaging, and Mike’s parents discover it on his phone. It is highly unlikely that both parties will be charged with possessing, distributing and production of child pornography. In most cases, if the teens appear before a judge, they will be required to complete counseling and/or community service.

One important item to note is that if one of the teenagers is 18 or older, he will likely be tried under the state’s child pornography laws.

Lastly, it is also illegal to send sexual images of a person older than 18 to someone younger than 18. This would likely be considered “lewd acts with a child.” If convicted, this charge would require you to register as a sex offender for life.

For an 18-year-old sending sexually explicit photos of himself to a 17-year-old, his text message could have life-altering repercussions.

Penalties for child pornography and lewd acts with a child in California

Child pornography is a “wobbler” in the State of California, meaning that it can be prosecuted as either a felony or misdemeanor. The maximum penalties for misdemeanor child pornography are:

  • 1 year in county jail and/or;
  • A $1,000 fine;
  • And mandatory lifetime registration as a sex offender.

Depending on the circumstances around your case, it’s also possible to prosecute this as a felony, which carries these penalties:

  • A California state prison sentence of 6 months to 18 years;
  • Fines of up to $100,000;
  • And mandatory lifetime registration as a sex offender.

If you are convicted of lewd acts upon a minor, your sentencing will be based on the facts of the case. Circumstances like age of the child, use of force and frequency of offence can determine the penalty:

  • Upwards of 16 years in state prison;
  • And mandatory lifetime registration as a sex offender.

Practical advice

Navigating our web of laws and the California judicial system can be difficult, so it might be best to boil down California’s sexting laws into a few basic rules:

  1. Only get involved if everyone is over 18 and has consented to not only the photography, but also the distribution of the images.
  2. Do not contact children under 18, especially with sexual messages.
  3. If you are a parent of a child or teenager, warn them about the dangers of sexting. Even if it seems harmless, transmitting sexual images electronically has the potential to have life-altering effects.

If you have been charged with invasion of privacy, revenge porn, child pornography or lewd acts upon a child

Laws like “unlawful peeking” and “revenge porn” are relatively new to the California judicial system, so there is little case law establishing how they should be applied in practical courtroom situations.

That means it’s very possible to fight the district attorney if you have been charged with invasion of privacy, revenge porn, child pornography or lewd acts upon a child.

It’s important to contact an aggressive and through defense attorney as soon as possible to begin building your defense. I have been handling sex crimes cases throughout the Los Angeles area since 1984, and I’m prepared to fight for your freedom.

Call today at (310)456-3317 or toll-free at +18008346434">(800)834-6434 to schedule your free consultation.