What is considered legal or illegal sexting in Florida?
Florida sexting laws define sexting as “the act of sending sexually explicit photos or messages electronically,” primarily between cellphones. For teens, sexting is a crime that is punishable on a second offense.
Quick take:
- Sexting among consenting adults is legal in Florida.
- Florida sexting laws do not prevent prosecutors from charging teens with child porn or other related charges.
- Taking reasonable steps to delete sexts or reporting the sender to school, law enforcement, or guardians is an affirmative defense.
Florida sexting laws: Summary
The law prohibits the sending and receiving of videos or images depicting nudity and are harmful to minors. Consequently, both sender and receiver may face charges. For a first non-criminal violation of Florida sexting laws, the court may issue a non-criminal citation requiring the offender/s to either complete eight hours of community service, participate in a cyber-safety program, or pay a $60 fine. The minor has thirty days to challenge the citation in court.
What if you do not comply with the citation?
The court may charge the teen with contempt of court. If the teen loses the citation appeal, the court will require the teen to complete any of the punishments named above.
Repeat offenders face first-degree misdemeanor charges, and the charges may escalate into a third-degree felony for further violations. If applicable, the prosecution may charge the teen with harassment, or child porn. Adult offenders may face harassment, child porn, solicitation, voyeurism, or other charges depending on the facts presented.
Affirmative defenses
If a minor took reasonable steps to report the video, photograph, or other media to the sender’s guardian, school, or law enforcement, then he has committed no crime. Another defense is the receiver did not solicit the video or photo.
What to remember: 2021. 847.0141 “Sexting: Prohibited Acts”
- It is a single offense to transmit multiple photos within a twenty-four-hour period.
- A minor that does not comply with a citation waives his right to contest it.
- Florida sexting laws do not prevent the prosecution of a minor for a violation of other state laws, including stalking, harassment, and child porn.
The statute reads, quote, “A minor commits the offense of sexting if he or she knowingly:(a) Uses a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity, as defined in s. 847.001(9), and is harmful to minors, as defined in s. 847.001(6).”
OR.
“(b) Possesses a photograph or video of any person that was transmitted or distributed by another minor which depicts nudity, as defined in s. 847.001(9), and is harmful to minors, as defined in s. 847.001(6)”
Statute 847.001 defines nudity as “The showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state. A mother’s breastfeeding of her baby does not under any circumstance constitute “nudity,” irrespective of whether or not the nipple is covered during or incidental to feeding.”
Florida sexting laws and child porn
The prosecution may decide to charge a teen with criminal violations such as possession or distribution of child porn. Consequently, the accused may face both federal and state child porn charges. Florida child pornography laws outlaw the electronic transmission of material depicting a minor (anyone under 18) engaged in a sexual act. The law labels the crime as a third-degree felony.
A third-degree felony in Florida is punishable by a $5000 fine and up to five years behind bars.
Florida statute 827.071 defines possession of child porn as “knowingly possessing, controlling, or viewing child pornography.”
What to remember:
- Florida child porn laws define possession of each video or photo as a separate crime.
- Possession of child porn is a third-degree felony
- Possession of four or more images or videos depicting a minor in a sexual act has a mandatory 12-month prison sentence.
- Aggravated possession, that is, if the victim depicted is younger than five, or if the photos or videos contain sadomasochistic abuse, sexual battery, bestiality, or any movie involving a child, is a second-degree felony in Florida.
- Any image depicting a minor engaged in a sexual act constitutes child porn in Florida.
If the teen is over 18, he will face charges in adult court.
Can a teen be tried as an adult for sexting offenses in Florida?
Depending on the severity of the crime, minors above fourteen may face charges as adults. In such a scenario -the teenager will face adult penalties and mandatory registration into Florida’s sex offender registry.
In Florida, sexting is both a state and a federal offense. Consequently, if there is an exchange of photos or videos depicting a minor engaged in a sexual act, the offender may face state and federal punishment.
Federal law and sexting
Federal law prohibits the possession, distribution, creation, and viewing of child porn. If found guilty of a federal child porn offense, the punishment could be anywhere from two years to forty years, or in some cases life behind bars. For minors, federal charges are unlikely, but adults found in possession of child porn will likely face federal charges and mandatory registration into the state’s sex offender registry.
Parents who consent to the sexual exploitation of minors under their care may also face state and federal charges.
Florida sexting laws and solicitation of a child
Florida statute 847.0135 makes it a crime to encourage or lure a child to participate in sexual conduct. The statute reads in part, quote “any notice, statement, or advertisement of any minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information to facilitate, encourage, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct, commits a felony of the third degree.”
That means knowingly using the internet, smartphone, or other devices to communicate with a minor to solicit any sexual act is a crime. Furthermore, soliciting a minor is a crime even if the offender does not meet the minor.
Solicitation without a meeting is a third-degree felony, whereas if the accused travels to meet the minor, the crime escalates into a second-degree felony. A second-degree felony is punishable by up to fifteen years in prison and a $10,000 fine.
What to remember
- It is a crime to knowingly use the internet or electronic device to lure, seduce, solicit, or entice a minor.
- Any offender that misrepresents his or her age is guilty of a second-degree felony.
- Each use of a smartphone device, computer service, local board service, electronic data transmission, and so on -to solicit or lure a child is a separate offense.
- Soliciting, luring, or enticing a caregiver or parent to consent to the participation of a minor in sexual conduct is a second-degree felony.
Florida sexting laws and harassment
Unsolicited sexts, nudes, heavy breathing, obscene comments, and messages -are all forms of harassment/stalking via phone. A single call may not be enough to take civil action against the offender, but if the calls persist, the messages make you uncomfortable, or if the person threatens you via phone. The crime committed is stalking or cyberstalking.
Florida statute 365.16. Obscene or Harassing Telephone Calls, says, quote, “whoever makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, vulgar, or indecent; and by such call or such language intends to offend, annoy, abuse, threaten or harass any person at that called number,” is guilty of a second-degree misdemeanor.
The remedies for harassment include a restraining order, protective order, or you may demand damages via a lawsuit. The facts of the case will determine the charges to file, so we recommend consulting with an experienced attorney if you decide to file charges.
Is text harassment a crime in Florida?
Yes, text harassment in Florida constitutes stalking. To elaborate, The state defines stalking as, quote “ A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of stalking, a misdemeanor of the first degree. “
What to remember:
- Aggravated stalking/cyberstalking is a third-degree felony.
- Restraining orders may be valid for up to ten years.
Florida sexting laws and revenge porn laws
In Florida, posting or sharing sexually explicit images of a former partner or spouse is considered harassment. Also known as cyber harassment, revenge porn is a first-degree misdemeanor. If the photos or videos shared were taken via a hidden device, the offender is guilty of voyeurism.
Statute 784.049 defines cyber harassment as, quote “cyber harassment means to publish to an Internet website or disseminate through electronic means to another person a sexually explicit image of a person that contains or conveys the personal identification information of the depicted person without the depicted person’s consent, contrary to the depicted person’s reasonable expectation that the image would remain private, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person. Evidence that the depicted person sent a sexually explicit image to another person does not, on its own, remove his or her reasonable expectation of privacy for that image.”
What to remember:
- If the offender has prior cyber harassment convictions, the crime escalates from a misdemeanor into a third-degree felony.
- Victims of cyber harassment may initiate a civil action to recover monetary damage, including reasonable attorney fees and costs.
Navigating these laws on your own is difficult, we recommend consulting with an experienced local defense attorney today.
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