What Does Florida Law Define as Sexting?
Florida state law defines sexting as the act of using a cell phone or any kind of electronic device to transmit or create sexual conduct in a visual image or a description of sexual conduct. In other words, it constitutes the sexual or lewd suggestion transmitted through a text or other form of electronic media such as email, social media messaging or even in a word document or other word processing application. Essentially, it encompasses any possible way that a person could use the current technology in their possession to transmit images or descriptions of sexual conduct.
However, in addition to simply producing a body of evidence, the law also requires that the resulting images or descriptions contain "explicit sexual content," which the statute defines as sexual or lewd conduct such as sexual intercourse, sexual bestiality, masturbation or sadomasochistic abuse .
Here is the full statutory language outlining the definition of sexting (emphasis added):
"Sexual conduct" means sexual intercourse, deviate sexual intercourse, lewd acts, and masturbation. Sexual conduct also includes, but is not limited to, the following:
(a) Vaginal intercourse.
(b) Anal intercourse.
(c) Oral intercourse.
(d) Sadomasochistic abuse.
(e) Sexual bestiality.
(f) Masturbation.
(g) Dismemberment of genitalia, breast, or pubic hair.
(h) Sexually explicit touching or fondling of human genitals, breasts, pubic hair, or buttocks.
(i) The insertion of bodily or foreign objects into genitalia or rectum.
It is worthwhile to note that, under this statute, a defendant is not legally liable for producing sexual content unless their intent is specifically to tempt or entice a child into sexual activity.
Criminal Penalties of Sexting for Children
If a sexting offender is under the age of 18, the other person, the parent of the minor offender, and the school superintendent of the school-associated with the minor offender must be notified once the sexting is investigated by police or law enforcement officers. The law also requires these offenders to be educated so they do not commit the same crime again. The law makes it clear that if a minor is caught under the sexting laws, there will be serious consequences. If a sexting offense was meant solely for the recipient, it can be classified as a 1st degree misdemeanor. This whole situation is rather confusing, but the law does make it clear that this is not what a minor wants to deal with at all. A 1st degree misdemeanor in Florida is a pretty serious matter. Basically any misdemeanor can lead to jail time, but a 1st degree misdemeanor such as this one can lead to a year in jail and stiff fines sure to make any teen think twice about sending those types of photos out again. Additionally, a 1st degree misdemeanor on your criminal record can make it difficult for a minor to achieve the goals they have in mind for their adult life. The only way a minor can avoid a first degree misdemeanor for sexting is if the minor (18 years or older at the age of the crime) shows intent to not harm, harass, or intimidate the other person. However, please keep in mind that this is an incredibly difficult standard for any minor to meet.
Penalizing Sexting in Florida Statutes
Florida has several statutory provisions that indexes and defines the crime of sexting, explains how the crime of sexting is dealt with in the Criminal or Juvenile system, and explains the crime of sexting for the purpose of child pornography. The focus of this section is to identify those statutes, explain some of their key provisions, and highlight any recent legislative changes or updates.
The word "sexting" has no fixed legal definition, although it is a term that is often used to describe the set of crimes that involve the capture and transmission of explicit images through texting. The closest thing that Florida currently has to a legal definition of sexting can be found in § 843.17, Florida Statutes, where the Legislature defines the term "sext" as "to send and receive a sexually explicit or suggestive image of oneself or another person by way of text, e-mail, or other electronic medium."
The Florida Legislature has chosen to define the crime of sexting for the purpose of the Criminal Justice System, as opposed to more serious crimes, specifically those associated with child pornography offenses, by incorporating those offenses into existing criminal statutes. Most of the relevant provisions regarding the crimes of sexting are in Chapter 843, Florida Statutes. There are two Florida criminal statutes that involve the act of sexting; one deals with general violations in the Criminal Justice System, while the other deals with violating the law in Juvenile Dependency Court if the defendant is under 18 years of age.
The crime of sexting that is covered in Chapter 843, Florida Statutes, relating to the general criminal offenses that could apply to sexting, is defined in § 843.24, Florida Statutes. This statute makes several important distinctions: The statute also distinguishes between the terms "explicit" and "suggestive," and distinguishes between the degree of felony involved in the criminal offense.
The Florida Legislature has also enacted several statutes addressing the concept of sexting in the Juvenile Justice System. These statutes are codified in Chapter 984, Florida Statutes, and in § 984.03, Florida Statutes, the Legislature provides that the term "criminal acts" will apply to any act or omission for which a sanction may be imposed that could result in criminal prosecution if the defendant were an adult.
The biggest change regarding sexting in the Criminal Justice System in Florida is the implementation of the Sexting Law, which applies specifically to individuals who are at least 18 years old, and which was enacted in 2019. The laws related to child sexual abuse and exposure are already specified in Chapters 800 and 827, and so do not link directly to the Sexting Law.
The University of Florida Levin College of Law had the full Parliament Bill Digest available here.
Legal Defenses Against Florida Sexting Prosecution
Possible defenses may be available in compelling circumstances. Some of these defenses include:
Consent – If the person to whom the sexual images were sent was over age sixteen at the time of the offense and the image was consensual, "that is, sent with the consent of the person depicted," then he or she cannot be charged with any related offense.
Involuntary Return of Image(s) – If the sexual image(s) were involuntarily returned by an outside actor, such as a hacker, the recipient should not be charged with a related offense.
Intoxication – If one or both parties were intoxicated at the time of the offense, that may vitiate intent.
Entrapment – In rare circumstances, the defendant may use this defense, by showing that police used deception or other procedures to induce the defendant to break the law.
Vagueness – Defendants may also challenge the constitutionality of the law in question against a vagueness challenge . A statute is void for vagueness if it "fails to give ordinary people fair notice of (the penalized conduct) and fosters arbitrary and discriminatory enforcement," and is unconstitutionally vague on its face if it "sufficiently indistinct so that (a person of average intelligence would not understand that his behavior was prohibited)."
Ex Post Facto – This constitutional safeguard prohibits the passage of laws that change legal consequence of an act retrospectively, making it more burdensome than existed at the time the act was committed. As a general rule, a defendant cannot be prosecuted for conduct that: 1. Was not criminal when it was done; 2. May not be punished more severely than could have been when it was done; or 3. Has been repealed retroactively if the repeal (or change in penalty) applied to offenses or corresponding conduct occurring before the repeal or change (e.g., the laxer law now applies).
Penal Implications of a Sexting Charge for a Teenager
When teens are charged with sexting, the personal impact can be severe.
In terms of education, most Florida school districts take the issues of sexting, or sharing explicit images, very seriously. In many cases, schools are required to report teens charged with sexting to the police. Few school districts will continue to educate students at their school if they have been found guilty of a felonious violation of the law (this includes sexting). For example, Miami-Dade County, Florida’s new policy requires expulsion of any student convicted of sexting. Not only do students face expulsion from their school, but they often have a criminal record of a felony conviction as well. Over two dozen states have passed, or are considering sexting laws, that would classify this conduct as a crime.
Furthermore, if a teen is expelled from their school, it makes it impossible for them to keep up academically with their peers. In the past, most teen offenders of sexting laws were able to attend alternative, or night school, but new state laws require teens to receive instruction by a certified teacher in a traditional school setting. This can be difficult for students for many reasons, including being bullied by their peers, facing embarrassment, being placed in a class with younger students who have different educational goals, and/or being away from students with whom they have established friendships.
If a convicted teen is permitted to return to school, their conduct is reported to the school. A teen convicted of sexting will most likely be excluded from any extra-curricular activities.
The punishment can go beyond the expulsion from school and a criminal conviction. Even if the teen is not required to register on a sexual offender registry, the reality of having these items captured digitally will follow them throughout their life. For example, if the schools and most employers conduct background checks for any purpose, these issues are very likely to come to light. In addition, if the teen transfers schools, the problems will follow them, including a potential removal from a gifted program, Honors Program, and/or other advanced courses. In some cases, the school could be prohibited from providing future referrals to colleges or opportunities to enroll in advanced college level programs. A criminal background check may exclude the teen from job opportunities once they graduate even if it is for an entry level job. Most significantly, if convicted of a felony, the teen will be barred from serving in the military and receiving many financial benefits from the government. Clearly, these types of consequences can devastate a young person’s life.
Sexting Precautions and Legal Counsel
Preventative measures and legal advice
As with many illegal acts, preventative measures are always preferred to disciplinary action or criminal prosecution. Consider the following strategies as a means of avoiding the negative consequences of sexting in Florida:
• Parents: Educate yourself on the common signs that indicate your teenager may be engaging in sexual texting. For example, constantly changing passwords may suggest an effort to hide something. Similarly, if you see that your teen goes online at night and disconnects from the family’s Internet connection immediately afterward, this could also mean that he or she is using their computer or mobile device to send, receive or distribute sexual messages or images. Other signs include increased secrecy, the hiding of mobile devices, a strong emotional reaction (positive or negative) to being restricted from computer or mobile device use and constant texting or messaging.
• Parents: Educate your teen about the law and the wide-reaching implications of what he or she shares on social media. The sooner you do so, the better; as soon as your child begins using social media, smartphones or other mobile devices to communicate, you should encourage the responsible use of these tools. While an open conversation about sexual activity is typically uncomfortable, it is necessary if you want to help your teen avoid legal repercussions . Other parents have had more success discussing the concept of privacy rather than discussing sex. Point out the fact that sexual images and messages can be shared with unintended parties very easily, and that such materials could even fall into the hands of law enforcement or be a component of a police sting operation. In addition, explain the importance of being cautious with personal and private information, as cybercriminals can steal personal information if they gain access to sexual messages and photos. Many teens are also very concerned about their future, so point out that misdemeanors and felonies could limit their college prospects and job opportunities.
• Teens: Follow instructions from your parents. If your mom or dad discourages you from texting or messaging your boyfriend or girlfriend, consider following this advice to keep your legal record clean.
If you or your child received a request or solicitations to commit an unlawful sexual act, an attorney can help you to handle the matter effectively. A lawyer can also work with you if you or your children experienced criminal charges due to an unintentional error or oversight related to an edited or altered sexual image, message or video. Additional legal advice may also be necessary if you or your child have experienced criminal charges for sending, receiving or distributing a sexual or pornographic message or video with a minor.
