Sexting continues to rise and really shows no signs of slowing down. Although sexting among consenting adults is legal in Arizona, sexting among minors and to minors, is not.
The top Phoenix criminal defense attorneys at Belen Law Firm will go over the details of both in this post.
What is Sexting?
The ability to seamlessly send pictures via text, chat, or on social media has spawned the phenomena of “sexting”, over the past several years. Generally speaking, sexing involves sending explicit photos, videos, or messages to others via cell phone.
Arizona is one of the states that has enacted legislation specifically addressing teen sexting. The law offers prosecutors various options that allow minors to avoid a felony record and sex offender registration.
In general, the statutes that define sexting crimes and the penalties can change. Also, how the courts interpret and apply those statutes can change, as well. This especially holds true for statutes that involve technology. For this reason, it’s especially important to contact a criminal defense attorney in Phoenix, if you have any questions or if you’ve been accused of a crime in Arizona.
Is Sexting Illegal As a Minor?
Arizona has a statute specifically for teen sexting: Arizona Revised Statutes Section 8-309.
This law states that it is unlawful for a minor to knowingly use an electronic communication device to view or transmit photographs or videos of a minor that depicts explicit sexual material. In this case, a minor refers to someone who is of the age of consent in Arizona, which is 18 years old. Furthermore, it is also illegal for a minor to knowingly possess explicit sexual material involving another minor. This is regardless of if the minor directly transmitted the material to the individual.
But, what does this mean?
This means that in Arizona, a minor cannot send or possess “explicit sexual material” of another minor. Even if the individual received the explicit material directly from the other minor, if the individual does not report the material or reasonably try to delete or destroy the material, they are behaving unlawfully.
So, what is explicit sexual material?
Explicit sexual material can refer to any image or video that depicts any of the following:
- sexual activity,
- sexual contact,
- genitalia, or
- sadomasochistic acts.
Can a Teenager Go To Jail for Sexting?
Individuals under the age of 18 who engaged in sexting, will go into the juvenile justice system, in Arizona.
Most of the time, if a minor chooses to use an electronic device unlawfully, the minor could receive a petty offense charge. But, this is if he or she sends the explicit material to only one person. This petty offense is punishable by a minimum fine of $300.
However, if the minor sends the explicit material to more than one person, it is a Class 3 misdemeanor. The Class 3 misdemeanor carries a possible sentence of 30 days’ detention and $500 in fines.
If this is not the minor’s first conviction for similar offenses, the crime escalates to a Class 2 misdemeanor. The Class 2 misdemeanor carries a possible sentence of up to four months of detention and $750 in fines.
For juveniles who receive and either report or delete the explicit material, they haven’t violated Arizona law. So, they won’t be penalized.
What is the Punishment for Sexting a Minor?
Arizona’s juvenile sexting law provides prosecutors with an alternative charging option in juvenile sexting cases. The prosecutor still has the option to charge a teen with a more serious felony offense-sexual exploitation of a minor-if the facts surrounding the case fit.
So, a teenager willfully taking and sending nude photos can qualify as child pornography. As unfair as this may seem, this is the law, in Arizona. (See our blog: Romeo and Juliet Law in Arizona)
It doesn’t matter if the teen gave consent for you to view or keep the photos, if the teen took the photos themselves, or if you and the teen are in a consensual relationship, in Arizona, possessing sexually explicit images of someone under the age of 18 is illegal.
Sexual Exploitation Meaning
In the state of Arizona, “sexual exploitation of a minor” generally refers to possessing child pornography. And, possessing child pornography is a crime under both state and federal laws.
Under Arizona law, sexual exploitation of a child occurs when a person knowingly:
- Records, films, photographs, develops, or duplicates any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct, or
- Distributes, transports, exhibits, receives, sells, purchases, electronically transmits, possesses, or exchanges any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.
What are the Adult Penalties for Sexting in Arizona?
An adult sexting a minor who is between 15 and 17, or sexual exploitation of a minor, is a Class 2 felony.
Also, for sexting-related crimes, teens over the age of 18 will most likely be charged as an adult for sexual exploitation or online solicitation of a minor, as well.
In Arizona, sexual exploitation of a minor, or a child pornography charge, can come with some serious significant potential consequences, if convicted.
Possible penalties include:
- A class 2 felony charge for the first offense. Penalties for conviction may include probation with anywhere from no jail time to one year of jail time, or 3 years to 12 and ½ years of prison time, with no probation.
- If the defendant has one prior felony conviction, the “prison only” range jumps from 3 years to 4, and from 12.5 years to 23 and ¼.
- If the defendant has two prior felony convictions, the “prison only” range becomes 10 ½ to 35 years of prison time.
A sexual exploitation conviction will require you to register as a sex offender for the rest of your life. This will limit contact with anyone under 18 years old, including your own children.
Registered sex offenders in Arizona must go through numerous tests and have expressed consent of their probation officer. This can and will affect job prospects, education, and living situations for the rest of your life.
Is Sexting a Dangerous Crime Against Children?
According to Section 13-705 you’re sexting a teen under 15 years old, this charge may qualify as a dangerous crime against a child. This is a special designation that the state gives to certain offenses when the alleged victim is under the age of 15.
If the child was 14 years old or younger at the time the photo or video was taken, the crime becomes a Dangerous Crime Against Children (DCAC). Crimes that fall under the DCAC statute carry incredibly severe penalties.
Penalties for a dangerous crime against children conviction can include:
- A minimum of ten years in prison for each and every conviction. The presumptive sentence is 17 years per conviction, with a maximum of 24 years per conviction.
- If a defendant has a prior DCAC charge or any other serious felony convictions, those numbers are above nearly double.
- If the defendant receives a conviction of 2 or more child pornography counts, he or she must serve these sentences consecutively.
- When a crime falls under Arizona DCAC, the defendant must serve 100% of the prison time before he or she becomes eligible for release.
Can I Get My Charges Reduced for Sexting in Phoenix?
If you or your child is a minor who’s been charged with unlawful sexting in Phoenix, a Phoenix sex crimes attorney may be able to help get your charges reduced to less serious crimes. Arizona courts often permit the downgrade of misdemeanor and felony child pornography charges to lesser charges. A few examples include “using a phone to threaten or intimidate” or “contributing to the delinquency of a minor”.
While both of these are criminal offenses, the consequences won’t be as severe. Most importantly, this may allow you to remain off of the Arizona sex offender list. The details surrounding your case will determine the outcome. Sexting in Arizona may not seem like a huge deal, but this isn’t the type of charge you’ll want to defend yourself. You can protect yourself or your child by hiring an experienced Phoenix sex crimes defense attorney.