Under the New York sexting laws/diversion program (see Cybercrime Youth Rescue Act), teen sexting that involves the exchange of inappropriate images is a felony. Furthermore, anyone, be it a teen or adult, who sends sexually explicit images to a minor is guilty of Disseminating Indecent Material to a Minor, a crime that warrants mandatory registration into the state’s sex offender registry.
- New York has a sexting diversion program for first time offenders.
- If the teen does not qualify for the diversion program, prosecutors may pursue child pornography, cyberbullying (unlawful dissemination), and related charges.
- If a teen commits a felony or federal crime, the individual is not eligible for the diversion program.
New York sexting laws summary
Note that in New York, sending and receiving sexual depictions of a minor, that is, anyone below 17, is a felony. Under Federal Law, obscene photos, including selfies of anyone below 18, constitutes child pornography. If convicted of a felony, the teen must register as a sex offender and the record will stick, meaning it may impact college and work opportunities.
When does sexting become a crime in New York?
Upon arrest, prosecutors in New York may pursue charges, including Promoting a Sexual Performance by a Child, Disseminating Indecent Material to a Minor in the First degree, Unlawful Dissemination, or Publication of an Intimate Image.
The charges do not stop there, and the accused may also face solicitation, enticement, luring, or other related charges.
First sexting offense and New York teen sexting diversion program
In 2012, New York created a diversion program to shield teens accused of petty sexting offenses or misdemeanors from sex offender registration and jail time. Senate Bill S5253B “Cyber Crime Youth Act” replaces prison time and sex offender registration with a Mandatory Educational Program focused on the consequences of sexting and child pornography.
Who qualifies for New York’s education reform program?
- The accused must be under 20 and not more than five years older than the victim or co-accused (sender/receiver).
- Teens accused of petty offenses and misdemeanors.
- Teens with no prior records.
Note that the program does not protect teens accused of a crime that would be a felony if committed by an adult.
When does sexting become child pornography in New York?
Under PEN 263.11 “Possessing Obscene Sexual Performance by a Child,” it is unlawful to knowingly and intentionally possess, control, or access any depiction of a child engaged in sexual conduct. That means if a minor sends you inappropriate images with no solicitation on your part, the state requires you to report the act to the appropriate authorities or take reasonable steps to delete or destroy the images.
Remember, receiving child pornography is a crime under state law.
The list of felonies related to child pornography in New York include:
- Possessing a Sexual Performance by a Child is a class E felony punishable by up to five years in prison and or a fine.
- Promoting a Sexual Performance by a Child, a class D felony punishable by up to seven years in prison and or a fine.
- Promoting an Obscene Sexual Performance by a child is a class E felony.
- Use of a child in sexual performance, a class C felony punishable by up to 10 years in prison.
As mentioned, the law requires the accused to possess knowingly and intentionally obscene sexual material if accused of any of the listed crimes. That means that it is a defense that the accused did not knowingly possess depictions of a minor or to have control or access to it.
Also, state law defines child pornography as any media that depicts a child engaged in a sexual act, be it actual or simulated. These acts include the lewd exhibition of the genitals/breasts/buttocks, masturbation, sodomy, bestiality, and sadomasochistic abuse. So, it is a defense that the photos do not portray any of the mentioned acts.
Other defenses include:
- Age misrepresentation
New York sexting laws and promoting a sexual performance by a child
If convicted of promoting a sexual performance by a child, the accused must register as a Level Three Sex Offender. Once registered, the convict cannot interact with a minor without prior approval and must stay away from schools or other places where minors congregate.
How could this happen?
If a teen receives an indecent photo or video from another and then shares it to multiple others or posts that picture on the internet, forum, or in a group chat on apps such as WhatsApp. Prosecutors may pursue Promoting Sexual Performance by a child.
For a first offense, the court may order the teen to participate in the state’s educational program. Repeat offenders and teens accused of felony or federal crimes of a sexual nature may face up to seven years in prison for a first offense and up to ten years for a subsequent offense plus mandatory registration into the state’s sex offender registry. The court may also order probation for up to ten years.
Adult court or juvenile court?
If the teen undergoes prosecution in the juvenile system (youthful offender adjudication), the teen will not have to register as a sex offender and will not have a criminal record. To qualify for juvenile prosecution, the teen must not have prior records, and the juvenile must be at least fourteen and under nineteen at the time of the crime.
If one does not qualify or the victim was below fourteen, the accused will likely face trial as an adult. If tried as an adult, the teen will receive adult punishment.
What to remember:
- Upon conviction for promoting a sexual performance by a child or possessing obscene material by a child, the teen or adult must register as a sex offender.
- Failure to register as a sex offender is a punishable offense.
New York sexting laws and soliciting a minor via an electronic device
Soliciting a minor for sex or sexual conduct is both a state and federal crime. The act becomes a federal crime if the activity happens across state lines or if the victim is prepubescent. Note that conspiring to solicit and attempting to solicit sex from a child are also punishable offenses. That means using a smartphone or other electronic device with intent to solicit sex or sexual conduct may result in incarceration, fines, and in some cases, registration as a sex offender.
Under PEN100.13, soliciting sex from a minor using an electronic device, or requesting, commanding, or in any other way -attempting to cause a child to engage in sexual conduct is a class A felony. However, the statute also states that criminal solicitation is a class C felony.
New York sexting laws and luring a minor
Note that soliciting a minor for sex and enticing a minor to engage in sexual conduct are separate offenses. Luring a minor involves contacting a child with intent to invite, induce or encourage a child to engage in sexual conduct. The act is a crime even if the child does not meet with the adult.
Under New York penal code 120.70, “Luring a child” a person is guilty of luring a child if the individual in any way persuades a child to enter any vehicle, go to a secluded area, or enter a building to commit an unlawful act.
Luring a child is a class E felony for a first offense. However, if the accused has priors, the crime escalates into a class A or class B felony, depending on the facts presented.
Disseminating indecent material to a minor
Using a computer, smartphone, or other devices to disseminate any media that depicts sexual conduct such as intercourse, sodomy, bestiality, lewd exhibition of genitals, or material that is harmful to minors is a class D felony in New York. Upon conviction, the accused must register as a sex offender.
Note that the law applies to actual and simulated content, meaning sending nudes or pornography to a child is unlawful.
What to remember
- State law prohibits knowingly promoting, selling, or loaning indecent material to minors (235.21)
- Disseminating indecent material to a minor in the second degree is a class E felony.
- A minor exhibiting a driver’s license, birth certificate, or any other official document is an affirmative defense.
New York Revenge Porn Law (Unlawful Dissemination of an Intimate Image)
Enacted in 2019, Senate Bill S1719C is New York’s revenge porn law that outlaws the distribution or sharing of intimate photos without the consent of the person depicted. The statute states that an individual is guilty of unlawful dissemination if the person, with intent to cause financial, emotional, or physical harm, publishes, disseminates, shares, or distributes identifiable -still or moving- images without consent.
The law works under the assumption that the depicted person had a reasonable expectation of privacy, and the accused knew or should have known that the victim understood that the images would remain private.
That means any photo or video created in a commercial setting involving voluntary exposure does not apply.
- Senate Bill S5253B Cyber Crime Youth Rescue Act
- PEN 263.11 Possessing Obscene Sexual Performance by a Child
- PEN 100.13 Criminal solicitation in the first degree
- Senate bill S1719C Unlawful Dissemination of intimate image
Other New York Laws