Sexting

While Florida law does not criminalize the taking and sending of explicit photographs between two consenting adults, it does prohibit minors from doing so. Specifically aimed at teenagers, Florida’s sexting law represents an attempt by state legislators to teach minors the seriousness of distributing these types of images to others, while also giving them the opportunity to address their mistakes. Repeated violations can leave teenagers with a criminal record, so it is important that Florida teens understand the ins and outs of the state’s sexting law.

Prohibited Conduct

In Florida, under state statute 847.0141, a minor can be charged with sexting if he or she knowingly uses a computer or another device that is capable of electronic data transmission to send a photograph or video of any person to another minor if that image:

Depicts nudity
Is harmful to minors

Florida state statute 847.001 defines nudity as the showing of specific parts of the body, including the genitals, pubic area, or buttocks if they are covered by material that is less than fully opaque. Showing the female breast with a transparent covering or revealing an area below the top of the nipple also falls under this category, unless the subject is breastfeeding. Finally, any depiction of the male genitals in a turgid state is considered nudity for the purposes of the sexting statute.

In addition to the image being nude, prosecutors must also demonstrate that an image is harmful to minors, which includes any reproduction, representation, or description that depicts nudity, sexual excitement, or sexual conduct when it:

Predominantly appeals to a prurient or shameful interest
Is patently offensive
Is without serious literary, political, artistic, or scientific value for minors

A minor can also be convicted under the sexting law if he or she is caught in possession of this type of video or photo. However, those who did not solicit the image took reasonable steps to report it to a parent, guardian, school official, or law enforcement officer, and did not transmit the photo to anyone else will not be prosecuted.

Even if a minor sent or received multiple photos or videos that depict a nude teen, he or she will still only be charged with a single offense, as long as the images were sent within the same 24 hour period. Otherwise, he or she may face multiple charges and harsher penalties.

Penalties

The first violation of Florida’s sexting law will be treated as a noncriminal violation, although the minor will be required to sign and accept a citation promising to appear before the juvenile court. Alternatively, the minor can complete eight hours of community service, pay a $60 fine, or participate in a cyber safety program. One of these conditions must be satisfied within 30 days after receiving the citation. Those who fail to fulfill these obligations may face additional penalties, including the suspension of his or her driver’s license for up to 30 days.

For a second violation, minors are charged with a first-degree misdemeanor, which could require them to spend up to one year in jail and pay a $1,000 fine. Those who are convicted of violating the sexting law for the third time can be charged with a third degree felony, which is punishable by up to five years in prison, probation, and a $5,000 fine.

This graduated system of punishment gives teenagers, who are notorious for their poor decision making, the opportunity to learn from their mistakes without saddling them with a permanent criminal record, conviction of a sex offense, and mandatory lifetime sex offender registration.

Child Pornography

If a minor is caught sending videos or photos that depict not only nudity but also sexual conduct, he or she can be charged under the state’s child pornography law. If the photo was taken of a person without his or her knowledge and was sent as a means of harassment, the offender could also be charged with stalking, which can qualify as either a first-degree misdemeanor or a third-degree felony depending on the circumstances of the case.

The sexting law only applies to minors under the age of 18 years old. This means that anyone who is over this age and sends explicit photos of underage teenagers would be charged with and possibly convicted of transmitting or possessing child pornography. Even possessing an image deemed to satisfy the definition of child pornography could mean up to five years in prison, while production and promotion are punishable by a 15-year prison sentence and a $10,000 fine.