F.S. 847.0141 - Sexting in Florida

The proliferation of electronic communications in the 21st Century has led to the meteoric rise of a phenomenon known as “sexting.” The term refers to the practice of exchanging sexually explicit texts, emails, photos, videos and messages via electronic devices. Sexting that involves two consenting adults is perfectly legal. Problems arise when there is a lack of consent and/or at least one of those involved is a minor. F.S. 847.0141 is the Florida statute that outlines circumstances that can make sexting illegal. 

As Broward criminal defense lawyers can explain, the seriousness of these offenses (or whether such acts are considered offenses at all) rely heavily on the age of those involved, whether the exchanges were consensual and whether this is a first-time or repeated offense. 

There’s also a lot of room for prosecutorial and judicial discretion in sexting cases. Hiring a knowledgeable and dedicated criminal defense lawyer as soon as possible is imperative. 

The term “sexting” stems from combining the words “sex” and “texting.” It involves sending and receiving sexually explicit materials via text messaging, but could also involve use of a computer or any other device capable of electronic data transmission or distribution to knowingly transmit or distribute nude photos or videos between two or more persons.

Sexting in Florida is only illegal when it:

• Involves at least one minor. This can include the sender, receiver, or both.
• Depicts nudity that is considered harmful to minors. As defined in F.S. 847.001, “harmful to minors” is understood to mean any reproduction, imitation, characterization, description, exhibition, presentation, or representation of any kind or form that depicts nudity, sexual conduct, or sexual excitement that: 1. Predominantly appeals to a prurient, shameful, or morbid interest. 2. Is patently offensive to the prevailing standards of the adult community as a whole with respect to what’s suitable conduct for minors. 3. When taken as a whole lacks literary, artistic, political, or scientific value for people underage. 

In general, a first-time sexting offense involving two minors will result in a noncriminal citation handled in juvenile court. That process will involve:

• The minor signing and accepting the citation. The minor promises to either appear in juvenile court on a certain date OR complete 8 hours of community service work and pay a $60 civil penalty OR participate in a cyber-safety program (if locally available) within 30 days. 
• Contested citations require a juvenile court appearance. It’s wise to hire a lawyer to help with this process. If the citation is contested and the juvenile court is found to have committed the alleged offense, the court can require any combination of the above (community service, civil penalty, and cyber-safety program). 

A minor can defend against a sexting citation if all of the following apply:

• They did not ask for the photo or video that was sent to them.
• They took reasonable steps to report the photo or video to a parent, legal guardian, school official or police. 
• They didn’t forward the images to anyone else. 

If the minor fails to comply with the terms of the citation, the court can issue an order to show cause, find the minor in contempt, and impose age-appropriate penalties – which can include a 30-day driver’s license suspension. It cannot involve incarceration. 

A minor can be criminally prosecuted for sexting if: 

• They commit a second sexting offense (a first-degree misdemeanor). 
• They commit a third sexting offense (a third-degree felony). 
• The explicit materials shared are disseminated to third parties without the consent of the person depicted. This is considered sexual cyberharassment or “revenge porn,” a first-degree misdemeanor, as outlined in F.S. 784.049.
• They engage in cyberstalking, as outlined in F.S. 784.048. This is a first-degree misdemeanor, but increases to a third-degree felony if the victim is under 16, credible threats are made, or acts are in violation of a protective injunction/restraining order.
  
• One of those involved is threatening or extorting the other to compel them to send sexually explicit images or messages against their will. This is a second-degree felony codified in F.S. 836.05.

Note: Even if multiple images or videos are sent, it’s still only considered a single offense if they’re all sent within a 24-hour period. 

Sexting between consenting adults is perfectly legal. F.S. 847.0141 is a charge that is solely reserved for minors under 18.

If an adult is sexting with a minor, they won’t be charged under that same statute. Instead, they’re likely to face far more serious charges, including:

• F.S. 847.0138, transmission of material harmful to minors to a minor by electronic device or equipment prohibited.
• F.S. 847.0135, computer pornography; prohibited computer usage; traveling to meet a minor.
• F.S. 827.071, sexual performance by a child; child pornography.

These are all felonies. Even the lowest-tier punishments carry a maximum prison sentence of five years. 

Young adults especially need to be mindful of this possibility because it doesn’t matter if you’re 18 and the person with whom you’re sexting is a 17-year-old willing participant. You can still be charged with a felony, so long as prosecutors can show that you knew or believed the other person to be a minor. As Broward criminal defense attorneys, we’ve seen cases where parents of the minor disapprove of the relationship and use these statutes to basically force a breakup – regardless of the fact that it also results in serious felony charges.

If you are charged with any offense relating to the exchange or possession of prohibited images or other content, contact our South Florida criminal defense law office for guidance.

Contact the experienced Fort Lauderdale criminal defense lawyers at The Ansara Law Firm, by calling (954) 761-4011 or toll-free at (954) 761-4011.