When Sexting is a Crime in Texas

Last Friday, former New York Congressman Anthony Weiner pled guilty in a federal court to the felony charge of transferring obscene material to a minor as part of a plea deal.

His sentencing hearing is scheduled for September 8, 2017.  It’s understood that as part of the plea agreement with the U.S. Attorney General’s Office, he will register as a sex offender and spend around two years behind bars in a federal facility.

So, what exactly did ex-congressman Anthony Weiner do?  He’s admitted in open court to engaging in “…obscene communications with this teenager.”  Or, in other words: sexting with a minor.

What is Sexting?

First of all, “sexting” is short for “sex texting” and involves sending digital messages of a sexual nature that involve messages, images, or video.  Sexting can be done over a phone or via the web.   Sexting may involve photos (selfies) or videos.  Sexting usually involves images; however, it can also be email or text messages where sex or sex acts are discussed.

Ask someone about sexting and you will usually hear about it involving teenagers or minors.  This is a big concern about both federal and state law enforcement.  However, sexting by definition is not limited to one of the individuals being under the age of consent (adulthood).  It is possible for two adults to be involved in sexting and one of them end up being arrested for a crime.

When is Sexting a Crime in Texas?

Both federal and state laws criminalize sexting.  Under both systems of justice, the issue involves the distribution of materials deemed to be obscene.

Federal Sexting Crime

Federal law forbids the possession or transmission of obscene materials.  The Supreme Court of the United States defined what is considered illegal obscenity in what has become known as “the Miller test” from Miller v. California, 413 U.S. 15, 24-25 (1973).

The Miller test is as follows, and if the material meets these three criteria, then it will be considered obscene and illegal under federal law:

1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

For more details, read the “Citizen’s Guide to U.S. Federal Law on Obscenity” published by the United States Department of Justice.

When sexting occurs between two consenting adults on their own phones with their joint agreement to keep the transmission private, it may not generate any federal charges.

However, things may be treated quite differently where the sexting results in its mass mailing or circulation for profit.  That may transform the sexting into something considered as pornography distribution under federal pornography laws and a felony violation.  It will depend upon the situation.

Currently there is no federal law making sexting a crime as non-consensual pornography (NCP).  (There is a revenge porn statute in Texas, see below.)  See, e.g., “How Two Marines Helped Bring Down Revenge Porn on Facebook” written by Katie Von Syckle and published in Rolling Stone on May 5, 2017.

Texas Sexting Crime

In Texas, Texas Penal Code Section 43.21(A),(B),(C) defines what is considered obscene and illegal in this state.  Obscenity is against the law here in Texas as well as under the federal statutes.  Obscene materials in Texas are those that:

1. the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
2. those that depict or describe:

(i)  patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality;  or

(ii)  patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs;  and

3. taken as a whole, lacks serious literary, artistic, political, and scientific value.

When an adult is arrested for sexting under state law, he can face charges for serious felonies tied to these obscenity laws.  What charges he may face will depend upon the circumstances of his particular case.

The Revenge Porn Statute

In 2015, the Texas Legislature passed Texas Penal Code Section 21.16, which has become known as the “Revenge Porn Statute.”   For details, read the article published in the Texas Tribune on August 21, 2015, written by Liz Crampton and entitled, “Taking New Steps to Put an End to Revenge Porn”.

Under this state law, it is illegal and a Class A Misdemeanor for someone to reveal or disclose images of someone engaged in sexual conduct or images of someone’s intimate parts unless that person gives their consent when that person had a reasonable expectation that the material would remain private.

Child Pornography Laws

If the adult is caught sexting with a minor, then he or she can face felony charges based upon child pornography (e.g., Possession of child pornography; Promotion of child pornography).

For more on child pornography charges, see our earlier discussions in:

• Child Pornography: Defending Against Overreaching Investigations Using the Internet;
• Child Pornography Arrests: Lessons From The Ex-Subway Pitchman’s Sentencing;
• Child Porn Charges: Busted By FBI Computer Surveillance and Now, Private Web Hackers on Social Media; and
• Federal Child Pornography Charges Often Involve Federal Surveillance of Online Communications, Personal Email Records, Stored Computer Files.

Sexting Involving Teenagers: Misdemeanor Crime in Texas

Sexting is also a crime in Texas if no adult is involved.  Under Texas Penal Code Section 43.261, it is a crime for a minor to “intentionally or knowingly” either:

 (1) by electronic means promotes to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material; or

(2) possesses in an electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.

This is a relatively new law, entitled “Electronic Transmission of Certain Visual Material Depicting Minor,” passed as a misdemeanor offense.  First offenders face a Class C Misdemeanor charge; after two or more convictions, the charge changes to a Class A Misdemeanor.

It has been passed by the Texas Legislature to deal with the huge problem of sexting among teenagers.  If convicted of a Class A Misdemeanor, the teen can face up to one year in jail. Texas Penal Code Section 12.21.

Before this law was passed, teenagers who were arrested for sexting faced the same charges as adults.  They could be considered to be promoting child porn even if they were minors themselves.  If convicted, they faced being forced to register as sex offenders, and sentenced for a felony conviction, something considered so unjust that the Texas Legislature was moved to pass the Teenager Sexting law.

For more details on the issues involving teen sexting, read, “The Dangers of Sexting,” written by Michelle Coker; Leslivett Garcia; JudithHicks; Jennifer Jeitz; Toni La Zurs-White, and Cheryl Rogers, and published by the Texas Counseling Association.

Defending Against Sexting Crime Charges in Texas

There are defenses to charges of criminal sexting.  Some are contained within the statute itself, e.g., those found in Texas Penal Code 43.261 for minors caught with sexually explicit materials on their phones.

However, even being arrested and charged for a sex crime can be a life-altering event in a person’s life.  And for those adults who are accused of having sexually explicit images of minors in their possession, the risk of being labeled a predator and forced to register as a sex offender is very real.

These kinds of allegations merit an aggressive criminal defense strategy as soon as possible.  Regardless of the intent in creating the image or message, fighting a sex crime charge means fighting against suggestions of predatory improprieties.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”