What is Sexting?

"Sexting" is the act of sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device. These messages, photos, and images are then often being further disseminated through email and internet-based social networking websites well beyond their original intended recipients.

Sending or receiving a sexually suggestive image or text under the age of 18 is a crime and is considered child pornography and can result in criminal charges.  In a number of jurisdictions, criminal charges have already been brought to address this behavior.

"Sexting" is a growing problem:

Our youth across the nation, in Massachusetts and right here in Berkshire County are engaging in these risky behaviors which can pose great danger for themselves and others.  The 2010 National Institute of Justice publication,  “Much Ado About Sexting” reports 11% of teen girls ages 13 to 16 have been involved with sending or receiving sexually explicit messages. According to a 2014, National Campaign to Prevent Teen Pregnancy report, Teenage Sexting Statistics, nearly 40% of all teenagers have posted or sent sexually suggestive messages, but sexting is more common among boys than girls.

The National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmogirl.com published results of a "sex and tech" survey  links to PDF file which explored the connection between teen sex and cyberspace, examined just who they are sending these images to.  The survey polled 1280 teens and young adults between the ages of 13 and 26 about their cell phone, computer and digital device behaviors and attitudes.

  • 71% of teen girls and 67% of teen guys who have sent or posted sexually suggestive content say they have sent/posted this content to a boyfriend/girlfriend.
  • 21% of teen girls and 39% of teen boys say they have sent such content to someone they wanted to date or hook up with.
  • 15% of teens who have sent or posted nude/seminude images of themselves say they have done so to someone they only knew online.

When asked why they do it, the answers ranged from "it's fun," "it's flirting," "it's a present for my boyfriend" to "it might help me to hook up with someone I like" or "it's just a joke." Although nearly 75% of those surveyed indicated that they believed that sending this type of material can have serious consequences, 25% percent suggested this behavior was "no big deal."

Young adults, their parents and the public must understand that this behavior is "a big deal." This behavior is serious and unsafe. It can have major consequences at home, in school, and in the community, both now and in the future. School administrators are working to educate their staff about "sexting", and are reviewing school cell phone use policies so they can respond appropriately to the problem. Parents also need to educate themselves about the problem of "sexting", including the potential consequences of this behavior, and the resources which can help them address the issue with their children.

Massachusetts Laws:

"Sexting" may violate the laws of the Commonwealth that were established to keep our children safe. The child pornography laws in Massachusetts are all felonies; they are quite serious, and there are no "lesser" charges (i.e. misdemeanors) that apply to this conduct. Incidents of "sexting" in Berkshire County will be taken very seriously, with law enforcement intervention if necessary.

Posing a Child in a State of Nudity or Sexual Conduct

It is illegal for anyone, with lascivious intent, to knowingly encourage, cause, coerce, solicit, or entice a person under 18 years of age - male or female - to pose or be shown in a state of nudity (or semi-nudity) for the purpose of photographing them.

Thus, in many circumstances, encouraging a person, even a friend, who is under 18 to take a photo of themselves nude, or of body parts considered sexual in nature, with their cell phone or digital camera, violates this statute.

Dissemination of Pictures of a Child in a State of Nudity or Sexual Conduct

It is illegal for anyone, with lascivious intent, to knowingly send out or disseminate pictures of a person under 18 (1) in a state of nudity (or semi-nudity) or (2) engaged in a sexual act.

Thus, for example, a sixteen year old who photographs him or herself nude, and sends it to their boyfriend or girlfriend, violates this statute. A person who receives such a picture attached to an email, for example, and who knowingly forwards it to another person, may also be in violation of this law.

Possession of Child Pornography

It is illegal for anyone to knowingly possess photographs (in any format) which depict a person under the age of 18 posed with a lewd exhibition of genitals, buttocks, breasts or engaged in an actual or simulated sexual acts.

Having lewd photographs of another person's exposed genitals, for example, whether it be a friend or stranger, who is under 18, on your cell phone or home computer, violates this statute. Knowingly possessing it, even without sending it on to another person, is illegal.

Dissemination of Harmful Matter to a Minor

It is illegal for anyone to knowingly send to any person under the age of 18 matter considered to be "harmful. "Harmful matter" includes things that are obscene or pornographic in nature.

Thus when an 18 year old photographs his or her genitals, for example, and sends it to their 17 year old girlfriend or boyfriend, they are in violation of this statute.

Other Potential Consequences:

A conviction in criminal court for "sexting" may have other serious consequences. In addition to the potential jail sentence and/or fine imposed by a Judge, a conviction for the offenses described above may require registration with the Sex Offender Registration Board for the next 20 years. Furthermore, the court may order the forfeiture and destruction of the computer or digital devices used.

A conviction for any of the above-described offenses results in a "felony conviction," which can trigger a restriction of school activities, such as sports, denial of college admission, and denial of student loan eligibility. A felony conviction mandates that a DNA sample be provided to the state. A felony conviction may also affect future employment opportunities, such as those offered in law enforcement and other high-security clearance positions.

Even without a criminal conviction, "sexting" may be addressed within the school, and could potentially result in suspension or expulsion. Persons who engage in "sexting" may also feel humiliation and emotional distress as a result of the ease and speed at which these images and information can be passed from person to person. It is critical that everyone understand that once a message, image, video or photo is on a cell phone or other digital device, it can be put on the internet for the whole world to access; it cannot be taken back.

Awareness and Resources:

Addressing the problem of "sexting" through awareness and education can help reduce the frequency and severity of these incidents.  To be clear, we do not want to use the criminal justice system to punish young people for making poor choices using communication technology. This behavior, however, can have devastating and long-term consequences for all involved. As a result, many jurisdictions have felt compelled to use the criminal justice system, and we will as well if appropriate and necessary.

Parents and guardians should be informed about the function and capabilities of the electronic communication devices their children are using.  Fluid conversations about personal integrity  and the acceptable uses of cell phones, computers and digital devices will help young people resist peer pressure to engage in this behavior. 

Education is our greatest tool for prevention. To that end, each school year, the District Attorney's Office has provides trainings for students throughout the county, as well as several school staff trainings, on bullying, cyberbullying and computer and internet safety.   It is important that students, school personnel, and parents all receive information and education on these topics.   Resources are available through this Office and other organizations to arm parents with information to protect their children and help prevent this behavior. If we address these issues together, we can achieve the ultimate goals of keeping children safe and reducing their risk of exploitation both now and in the future.