Is “Sexting” a Crime?

David Lindsey, Attorney at Law

There are two types of people in the world: those who “sext” and those who don’t.

If you’re a part of the latter group, you don’t need to worry. But if you’re in the former, there could be cause for concern, depending on the content and recipient of your messages.

For those who don’t know, a “sext” is a text message containing sexually suggestive or graphic material. In many cases, sexts include nude or erotic photographs of the sender. These messages are a techno way to flirt (or harass) taken to the absolute extreme, and the practice has been popular among people of all ages since text messaging on mobile telephones became possible.

For many, sexting is nothing more than keeping the spark alive in their committed relationship. It’s risky, but since you’re doing it with a spouse or long-term love interest, there’s a good chance nothing will ever come of it.

But for others, sexting has ended careers and marriages, brought them great embarrassment, and even resulted in criminal charges.

What turns sexting into a crime?

Much of it depends on the ages of those participating and the type of message being sent.

Sexting Involves the Distribution of Pornographic Materials

You might not think of the photo you send to a friend or loved one is all that problematic. And chances are it won’t be – unless the photo includes pornographic material. Once you transmit a photo that is of you or anyone else without clothing on, you’ve essentially distributed porn.

To learn more about what is legally defined as pornographic, check out this page.

Most people don’t take their sexts all that seriously, but this is one of the reasons it’s so important to consider what you’re doing before you do it when it comes to messaging. Even via text, these messages aren’t 100 percent private, and if the person to whom you’re sending a message chooses to betray your trust, there’s little you can do to protect your privacy. (Revenge porn is being addressed legally, but the laws are still evolving and even the best law in the world does nothing to protect you if it’s ignored.)

Is Sexting Illegal in Colorado?

The good news is sexting, in general, isn’t necessarily illegal – as long as the sender and recipient consent to participating in the exchange and the photo contained in the exchange is of someone over the age of consent.

Sexting becomes criminal when there is someone underage involved.

Colorado does not have a separate law to address sexting between minors, which means any message sent that contains an image of someone underage, even if the sender and/or recipient are underage, is considered no different than if the sender were an adult.

If a teenager is caught creating, distributing, or possessing pornographic images of a minor (even if it’s him or herself) it is a felony. Something that seems relatively innocent (or at least not a predatory adult sending child pornography files) will actually be charged as sexual exploitation of a minor.

Obviously, if it is an adult sending or receiving nude or suggestively suggestive photos of a minor via text or any other electronic transmission, it’s easy to understand why he or she would be guilty of a crime.

But what about teens exchanging messages with one another?

Let’s say your daughter is 15 and sends a photo of herself to her 16-year-old boyfriend. This can still result in felony charges. Furthermore, because you likely own the device on which the sext was sent and you’re responsible for your child’s actions, you too could be held legally accountable and charged with both state and federal crimes.

The penalties for sexting are severe. Juveniles can expect to go through the juvenile justice process, which can ultimately reduce the penalty to house arrest, probation, or a fine, depending on the circumstances. An adult receiving or distributing sexual images of a child can expect to spend at least a year in prison and pay up to $750,000 in fines.

Is It Illegal to Sext?

The bottom line when it comes to sexting?

It’s risky no matter who’s involved.

Even if you are an adult in a committed relationship with another adult and you both agree that exchanging explicit images is fine, you’re taking a risk with your privacy. And if you’re sending images to someone without his or her consent, or you’re interacting with a child or the subject of the photo is a child, you’re breaking the law, even if you’re the child sending pictures of yourself.

If you’ve been accused of sexting crimes, you need the support and guidance of an experienced attorney. To learn more, contact David Lindsey to schedule a free consultation.

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