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Transmitting Material Harmful to Minors – Sexting – Obscene Communication

There is a wide world of digital content out there, and not all of it is pastoral. Transmitting nudity, for example, is illegal depending on who is sending it and who is receiving it. When my kids become preteens, I want them to know that by sending and receiving online information and images, they are assuming responsibility that ultimately could land them in hot water.

Q: What is ‘sexting’? Isn’t it just a petty offense?

A: Yes and no.

It depends on how you use the word. Florida Statutes 847.0141 defines sexting as between two minors, and a first offense is a noncriminal citation. However, Florida can charge additional counts for any 24 hour period in which pictures or videos were possessed or transmitted.

The sexting statute includes the transmission (i.e., the sending) of pictures or videos depicting nudity to another minor as well as mere possession of pictures or videos depicting nudity, if sent by a minor.

There are statutory exceptions for pictures or videos that have literary, artistic value.

There is also an exception if your kid is charged with possession and meets these complicated requirements:

  • He or she did not ask for it in the first place, and
  • He or she told a parent, teacher, or police officer about it; and
  • He or she never sent it to a third party

Preteens and teenagers are still developing their frontal lobes, the areas of the brain that are responsible for rational decision-making. That’s why teenagers are known to be impulsive. It might be a good idea to let your preteen know that they should never ask someone to send nude pictures, and that if they ever passively come across nude pictures or videos, it’s important not to send that content on to others.

Q: When does sexting become a felony?

A1: Between minors, under 847.0141, the offenses are stacking, which means they get more aggressive:

  • The first offense is a noncriminal violation. (Pay a fine, do community service, and sign up for a cyber-safety program).
  • The second offense, however, is classified as a 1st degree misdemeanor, where you could face up to a year in jail.
  • A third offense is classified as a third degree felony, with a legal maximum of 5 years in prison.

A2: If one of the parties is 18 years old or older and knows they are sending nude content to somebody under 18, that is called Transmitting Material Harmful to Minors, pursuant to Florida Statutes 847.0138, and that is a third degree felony.

Florida Statute 847.0138 does require that the sender either believed or had actual knowledge that the recipient was a minor. That does not help an 18-and-17 year old couple who know each other’s ages; but it could help defend an 18 year old if he is being catfished online by someone he thinks is another adult, but who turns out to be a minor.

If you or someone you know would like the assistance of qualified professional legal help in Florida, please contact Chesser & Barr, P.A. We would be happy to be of service.