Sending erotic pictures to a lover is a naughty game many couples enjoy. However, when the material shared involves child pornography or the sending of sexual images to a minor, it is no longer just a harmless bit of fun. In California, sending harmful material with the intent to seduce a minor is a crime under Penal Code section 288.2 (PC). If you have been accused of sexting or emailing obscene photos to a minor, please call a sex crimes defense attorney as soon as possible.
Sending Harmful Material to Seduce a Minor
If a sexting, video chat, DM, or other virtual session involves a person under 18 receiving sexually explicit messaging, the sender may be charged under Penal Code 288.2 (PC). This material could include videos of sex acts, nude pictures, or graphic sexual messages. As the name implies though, the content of these messages must be sent with the intent of getting the minor to participate in sexual activities. There are five main components to this crime:
- You intentionally sent the material
- The material is “harmful,” meaning it shows or describes sexual conduct in an offensive way without significant literary, artistic, political, or scientific value
- You knew, or should have known, the recipient of the material was a minor, or you failed to take reasonable measures to discover the age of the recipient
- You sent the material hoping to arouse the sexual desire of the recipient
- You hoped the recipient would choose to engage in sexual activities with you as a result of the lust they felt after viewing the content
Penalties for Sending Harmful Material to a Minor
This offense is a wobbler, meaning it can be charged as a felony or misdemeanor. When filed as a misdemeanor, it is punishable by up to one year in jail and a fine of up to $1,000. As a felony though, the offense is punishable by up to three years in state prison and a fine of up to $10,000. Those convicted of a felony-level offense will also be required to register as a sex offender.
Fighting the Allegations
For you to be convicted of this crime, the prosecution must be able to prove the five elements listed above. If, for example, there is any evidence to show that you had reason to believe the recipient was an adult, you cannot be guilty of this offense. Similarly, it is not breaking the law if you accidentally sent the material to a minor when you clearly meant to send it to another individual.
Notably, whereas only the actual age of the victim matters in other sex crimes, such as statutory rape, in this offense, it only matters if you believed the person you messaged was underage.
Keep in mind though, that you can easily say something to the police that may later harm your defense. For example, if you argued, “but she’s almost 18,” when trying to defend yourself, you could not later claim you thought the recipient was an adult.
These charges rely on evidence on your phone, computer, or ISP records. Do not consent to a search of your phone if the police seize it. Do not give your password to the police. Insist they obtain a warrant before searching your phone or computer. If your rights were violated in this type of case, your lawyer may be able to have the charges dropped.
Related Charges
Those charged with sending harmful matter with the intent of seducing a minor are often accused of other criminal acts as well. These may include child pornography, soliciting sex with a minor, statutory rape, or child molestation.
If a sexting session involves the sharing of nude or sexually explicit images or videos depicting a minor, then those involved could face child pornography charges. The recipient could be charged with possession of child pornography, while the sender can be charged with creation and distribution. Even if the sender or receiver was a minor, charges can still be filed as sharing images depicting someone under 18 is illegal, regardless of the defendant’s age.
If the adult tries to get a child to meet them in person for the purpose of engaging in sex acts, they can also face charges for soliciting sex with a minor. If any sexual activities occurred, they may also be charged with statutory rape or lewd acts with a child (aka, child molestation).
Depending on the situation, a defendant could even be charged with all of these crimes. If you have any questions about the specific charges you could face for sexting or otherwise messaging a minor with explicit material, your lawyer can help clarify things for you.
Frequently Asked Questions
Is Sexting Legal?
Sexting involves sending sexually explicit images or messages via cell phone. Sending harmful material with the intent of seducing a minor charges are often filed in sexting cases, but sexting is legal nationwide when it is done between two consenting adults. However, even sexting an adult can become a crime in certain situations.
You can violate the sexting laws of California if you send sexual images or videos without consent. If the content depicts someone who did not consent to the image being sent, you can be charged with criminal invasion of privacy under California Penal Code section 647(j) (PC). Similarly, if an individual does consent to their image or video being recorded, sexting it to someone else without their consent is still a crime under the state’s revenge porn law, under California Penal Code section 647(j)(4) (PC).
California laws make both of these crimes misdemeanors, punishable by up to 6 months of jail time and a fine of $1,000. The good news is that neither offense requires registration as a sex offender. Even so, because you can face one charge per image or video you share in a sext without consent, speak with a defense attorney as soon as possible if you have been accused of this crime.
Is Sexting a Minor a Felony?
Sending harmful material to a matter can be charged as a felony or misdemeanor under California sexting laws. Convictions can result in lengthy prison sentences, formal probation, massive fines, and mandatory registration as a sex offender. The prosecutor will base the severity of the charges on the case’s specific circumstances, and an attorney may help convince them to file as a misdemeanor rather than a felony.
Can Minors be Charged With Sending Harmful Material to One Another?
Surprisingly, yes. Just as teens can be charged with child pornography for sending naked pictures to one another or statutory rape for having sex together, they can be accused of sending harmful material to seduce a minor if they sext one another. Unfortunately, many juveniles try to get out of these charges by arguing, “but I am a minor,” which can then be used as a confession. For this reason, even minors should contact a defense attorney before speaking with the police.
If you have been accused of attempting to seduce a minor with explicit material or sending anyone sexual images or videos without consent, Peter Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.
