Sending nude photos, explicit videos or flirtatious messages by electronic means is generally legal in California if it takes place between consenting adults. However, sexting can lead to criminal charges if one of the participants is a minor, or if it rises to the level of stalking, harassment or invasion of privacy.
There are also a number of other acts, associated with sexting, that can be charged as a crime. Some of these include:
- saving nude images of a minor, gathered via sexting, to a smartphone or computer, and
- sexting to annoy, threaten, or harass a person.
Illegal sexting, and associated acts, can be charged under such California statutes as:
- Penal Code 288.2 PC, harmful matter sent to seduce a minor,
- California’s child pornography laws, and
- Penal Code 646.9 PC, stalking.
Note that sexting is sending and receiving sexual messages through technology like:
- a smartphone,
- an app,
- email, or
- a webcam.
Our California criminal defense attorneys will address the following in this article:
- 1. Is sexting legal in California?
- 2. Can you go to jail for sexting?
- 3. What are the potential penalties?
1. Is sexting legal in California?
The question of whether sexting is legal in the state of California depends on the facts of the case. Critical facts are if the sexting:
- was between consenting adults,
- involved a minor,
- led to a person saving an explicit picture of a minor, or
- was done to annoy, harass, or threaten.
1.1. Consenting adults
Sexting is legal in California if it is done between consenting adults. This includes adults sending each other:
- explicit / obscene material or photos, and
- sexually suggestive messages.
Example: Nia and Jerome are married. Both are 33 years old. Nia sends Jerome a suggestive photo and message in a social media DM – one day before leaving town on a romantic getaway. Jerome sends an equally suggestive text back.
Here, Nia and Jerome are not guilty of a crime. They simply engaged in consensual sexting and they are both adults.
Sexting with a minor in California is a crime. It is an offense for either:
- an adult to sext with a minor, or
- a minor to sext with another minor.
These constitute the unlawful acts of sending material to a minor for purposes of seduction.
Note that it is not a defense if the minor consented to the sexting.
Example: Mark, age 40, is attracted to his neighbor’s daughter, Kim. She is 17 years old. Mark sends her a flirty email one day and attaches a picture of his genitals. Here, Mark is guilty of a crime. He sent a nude photo to (“sexted) a girl under the age of 18. Note that Mark would still be guilty of an offense even if Kim consented.
1.3. Saving images of a minor
It is a crime to sext with an underage person.
It is an additional offense to save any explicit pictures of the minor gained via sexting.
This amounts to the illegal possession of child pornography.
“Child pornography” is defined as:
- any matter or material,
- depicting sexual conduct,
- by a person under the age of 18.
1.4. Sexting to annoy, harass, or threaten
It is illegal in California if a person sends sexually suggestive material with the aim to:
- harass, or
- threaten the intended recipient.
Example: Mark and Colleen are co-workers in Los Angeles. Mark is jealous because Colleen got a big promotion that he wanted. Upset, he uses his cell phone to send her a string of texts with explicit photos of intimate body parts and lewd comments.
Due to the text messaging of sexual images and comments, Mark is guilty of stalking, which punishes threatening and harassing behavior.
2. Can you go to jail for sexting?
A person can be prosecuted, and even go to jail, for sexting in some circumstances. It depends on the facts of the case. Potential charges under California sexting laws include:
- harmful matter sent to seduce a minor, per PC 288.2,
- child pornography, per PC 311,
- annoying phone calls, per PC 653m, and
- stalking, per PC 646.9.
2.1. Harmful matter sent to seduce a minor – PC 288.2
Sharing explicit texts or images with a minor is most often charged as a violation of PC 288.2.
This statute makes it a crime for a person to send explicit matter to a minor with the intent of:
- sexually arousing himself and/or the recipient, and
- seducing the recipient.1
Note that this law penalizes sending “harmful” matter to a child by any means. “By any means” definitely includes sexting.
“Seduce” means to entice a minor to engage in a sexual act involving physical contact.2
2.2. Child pornography – PC 311
A person is guilty of possessing child pornography if the following are true:
- the accused sexts with a minor, and
- in the course of sending sexts, he saves any explicit images of the minor to his device.
Penal Code 311.1 and 311.2 PC make it a crime to knowingly:
- possess, or
any child pornography.3
Saving an image would mean “possessing” it under the law.
2.3. Annoying phone calls – PC 653m
Prosecutors bring charges under PC 653m if the sexts are intended to annoy the recipient.
A person is guilty of an offense under this statute if he:
- sends an obscene, threatening or repeated message to someone, and
- does so with the intent to annoy the recipient.4
While this statute is entitled “annoying phone calls,” it applies to messages sent via:
- the phone,
- emails, or
- text messages.5
2.4. Stalking – PC 646.9
Sexting can be charged as stalking, per PC 646.9, if a person sends messages to:
- harass, or
- threaten the other person.
The statute makes it a crime for a person to:
- follow, harass, or threaten another person, and
- such actions cause the other person to fear for his or her safety.6
3. What are the potential penalties?
The criminal law penalties for illegal sexting depend on how the crime gets charged. In general, though, these offenses can get charged under the California Penal Code as either:
- misdemeanor crimes, or
- wobbler offenses.
A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony.
Note that teens charged in Juvenile Court may be sentenced to counseling, curfews, and community service.
Also note that sexting victims may also be able to bring civil lawsuits against the alleged perpetrator for emotional distress and other damages.
3.1. Misdemeanor offenses
A prosecutor will charge a sexting case as a misdemeanor if it results in a violation of PC 653m. This code section relates to annoying texts.
A misdemeanor under this law is punishable by:
- custody in county jail for up to six months, and/or
- a maximum fine of $1,000.7
3.2. Wobbler offenses
If sexting is charged under any other statute than PC 653m, then it is a wobbler. A prosecutor will charge it as either a misdemeanor or a felony depending on:
- the facts of the case, and
- the criminal history of the defendant.
If charged as a misdemeanor, the crimes are punishable by:
- imprisonment in county jail for up to six months or one year, and/or
- misdemeanor (or summary) probation.
If charged as a felony, the offenses are punishable by:
For similar laws in Nevada, see our article on “NRS 200.737 – Nevada’s Teen Sexting Laws.”