Parents of minor children and teens can find it difficult to keep up with activities trending among their kids’ generation. But one activity parents need to know about in Florida is “sexting.” The fact that virtually every youngster has access to either a computer or a smartphone means that any one of them could be flirting with violating a Florida law. This post explains what sexting is, what you and your minor children need to do to avoid violating the law, and what legal penalties may be imposed on any minor who violates the law.
What Is Sexting?
Sexting is a non-criminal offense committed when a minor transmits or distributes to another minor any photograph or video of “any person” depicting nudity (as defined by Florida law) and is harmful to minors by use of a computer, a smartphone, or any other device that can electronically transmit or distribute data. The Florida statute directs a person to another section of law defining the terms “nudity” and “harmful to minors.”
The law is also violated when a minor possesses a photograph or video that was transmitted or distributed to them by another minor. This point is especially important for parents who are sure their minor children would never transmit that kind of photograph to anyone. The illegal receipt and possession of a nude photo or video carries the same penalty as the person who transmitted it would receive.
If photographs or videos are transmitted or received on multiple occasions over the course of 24 hours, the law treats the series of exchanges as a single illegal event rather than as separate offenses.
How a Minor Avoids Violating the Sexting Law in Florida
There are special provisions in the law to protect minors who do not knowingly participate in the exchange of images prohibited by the sexting law. But this “safe harbor” provision requires that the minor meet all the following conditions:
- the minor did not solicit the photo or video, and
- the minor took reasonable steps to report the photo or video to their parent or legal guardian, or to a school or law enforcement official, and
- the minor did not transmit or distribute the images to another person.
Sexting Penalties Under Florida Law
Because minors are developing a natural interest and curiosity about sexual matters, the justice system handles the matter in a lenient manner with more corrective education than punishment.
The first offense of sexting by a minor is a non-criminal violation. The procedure for handling a minor’s first sexting offense involves issuing them a citation that requires the minor to appear before a juvenile court or to complete the following alternative penalty within 30 days after the citation date:
- pay a $60 fine,
- complete 8 hours of community service, and
- attend a cyber-safety program if available.
If the juvenile fails to complete these tasks within 30 days, then they must appear in juvenile court. If the minor doesn’t comply with either the alternative tasks or the order to appear in court, then the juvenile court may impose the tasks as mandatory and impose additional, age-appropriate penalties such as suspending the minor’s driver’s license for 30 days or ordering the Department of Highway Safety and Motor Vehicles not to issue a license to that minor.
Sexting Conviction by an Adult Requires Sexual Offender Registration
This blog post is focusing on sexting by minors, not adults. But it would be a lost opportunity if we were not to point out that anyone 18 years of age or older who is convicted of sexting can be required to register as a sex offender for the rest of their life.
Second Offense Sexting Is a First-Degree Misdemeanor
After a minor receives lenient treatment with their first offense sexting violation, the law resumes a more punitive response to any second or subsequent offenses. If a minor commits a second offense of sexting, then they are guilty of a first-degree misdemeanor carrying up to one year in jail.
This second offense is treated like any other crime and will produce a criminal record. Removing the record of conviction may be necessary following completion of the sentence if the offender is otherwise eligible for their record to be expunged or sealed.
Third Offense Sexting is a Third-Degree Felony
If a third sexting offense is committed, the penalties increase substantially. A third offense carries up to five years in state prison. To compound the serious consequences of a felony conviction, Florida law prohibits the expungement, removal, or sealing of a felony conviction from a person’s public record.
Related Criminal Offenses and Exposure to Federal Prosecution
Sexting is an offense involving the electronic transmission and receipt of images depicting nudity that is deemed harmful to minors. However, the images may be more graphic depictions of sexual activity rather than merely people appearing nude.
As minors are potentially exchanging images of themselves or their peers in various states of undress or engaged in some sexual activity, the possibility that the images constitute child pornography cannot be discounted. The interstate possession, transmission, or receipt of child pornography could result in the involvement of federal law enforcement authorities and federal prosecution.
Under federal law, the penalty for possession of child pornography is imprisonment for up to 10 years. That’s not to say that a 15-year-old teenager will be prosecuted in federal court for child pornography, but the images may be stored on a computer used by more than one person. If a teenager has access to a family desktop or shares a laptop with a parent, the adult will encounter serious problems as they attempt to defend misguided criminal charges lodged against them.
Learn More > Can a Juvenile Be Deemed a Sex Offender?
Defending Sexting and Related Charges in Florida
Any minor cited for sexting has the right to deny and defend against the allegation. As parents, considering the relatively lenient penalty a first offense, non-criminal violation carries, we might be tempted to let our teenagers face the consequences of their sexting as a life lesson. But keep in mind that a second offense is a criminal misdemeanor carrying up to a year in jail.
If the first offense sexting incident is accepted without any resistance, then your minor child may be a sitting duck for a subsequent offense if they did not correct their behavior.
Importantly, a second or subsequent offense increases the penalties if the accused was previously “found to have committed” a sexting offense. The term “found to have committed” means that they either plead to or were found guilty after trial, regardless of whether adjudication was withheld. This is significant because if a minor performs the alternative tasks within 30 days of being cited for sexting, then the event will not serve as a previous offense.
If your minor child or teen is cited for sexting in Florida, contact an experienced sexting defense attorney who is a certified criminal defense lawyer.
In Tampa, Stechschulte Nell, Attorneys at Law is experienced in handling the defense of all sexting offenses, first offense, misdemeanor, and felony sexting allegations. Call us today for a case review at 813-280-1244.