West Virginia distinguishes between teen “sexting” and serious child pornography offenses, offering a specific legal pathway for minors that focuses on rehabilitation rather than felony criminal records. Under West Virginia Code §61-8C-3b, minors who share explicit images are typically handled within the juvenile system as an “act of delinquency,” avoiding the harsh mandatory minimums and sex offender registration required for adult child pornography convictions. However, adults who sext with minors—or individuals who commit “revenge porn”—face significant criminal penalties, including prison time.
Key Points
Penalties at a Glance
- Teen Sexting (Minor): Juvenile court disposition (probation, counseling)
- Revenge Porn (1st Offense): Up to 1 year jail, $5,000 fine
- Child Pornography (Adult): 2-5 years prison (minimum)
- Aggravated Possession (300+ images): 5-20 years prison
Table of Contents
- West Virginia Teen Sexting Law (§61-8C-3b)
- Penalties for Teen Sexting
- Affirmative Defenses for Minors
- Adult Child Pornography Laws (§61-8C-3)
- Revenge Porn Laws (§61-8-28a)
- AI-Generated Imagery & Deepfakes
- Sex Offender Registration
- Long-Term Consequences
- Frequently Asked Questions
- What to Do If Charged
- Resources
West Virginia Teen Sexting Law (§61-8C-3b)
West Virginia recognized the need to treat minors differently from adult predators and enacted Code §61-8C-3b. This statute specifically prohibits juveniles from manufacturing, possessing, and distributing nude or partially nude images of minors.
The law applies to any minor (under 18) who intentionally:
- Possesses, creates, produces, distributes, presents, transmits, posts, exchanges, or disseminates any computer-generated child pornography
- Shares a visual portrayal of another minor posing in an “inappropriate sexual manner”
- Shares a visual portrayal of themselves posing in an “inappropriate sexual manner”
What is “Inappropriate Sexual Manner”?
The statute explicitly defines “posing in an inappropriate sexual manner” as the exhibition of:
- Bare female breast
- Female or male genitalia
- Pubic areas
- Rectal areas
Crucially, the law specifies that this exhibition must be for the “purposes of sexual gratification.” This intent requirement helps distinguish sexting from non-sexual nudity (such as medical or accidental images), though in practice, most teen sexting is presumed to fit this definition.
Penalties for Teen Sexting
Unlike adult offenses which result in criminal convictions, a violation of §61-8C-3b is declared an act of juvenile delinquency. This means the case is handled by the circuit court under juvenile jurisdiction (§49-4-701).
Juvenile Disposition
Instead of prison time or standard criminal fines, the court has broad discretion to order rehabilitation-focused outcomes, which may include:
- Probation: Supervision by a juvenile probation officer.
- Counseling: Mandatory therapy or educational programs regarding digital safety and legal consequences.
- Community Service: Required hours of service to the community.
- Restitution: If applicable (though less common in consensual sexting cases).
- Device Confiscation: Loss of the phone or computer used to send the images.
The goal of this statute is to correct behavior rather than punish the child for life. However, if a minor has a significant history of delinquency or the offense is egregious (e.g., involving coercion or blackmail), prosecutors may still have discretion to seek more serious outcomes.
Affirmative Defenses for Minors
West Virginia law includes a specific statutory defense for minors who receive unsolicited images. Under §61-8C-3b(c), it is an affirmative defense if the minor charged with possession:
- Did not solicit the receipt of the image (didn’t ask for it); AND
- Did not distribute, transmit, or present it to another person.
This protection is vital for teens who are “airdropped” or messaged explicit images they never asked for. As long as they do not forward the image or show it to others, they should not be adjudicated delinquent under this section.
Note: While the statute does not explicitly mention “prompt deletion” as a requirement for the defense, keeping such images is risky. The safest legal course is always to delete unsolicited material immediately and not share it with anyone.
Adult Child Pornography Laws (§61-8C-3)
When an adult (18+) is involved, or if a minor’s conduct falls outside the protections of the teen sexting statute, the state applies the severe penalties found in Code §61-8C-3.
This statute covers distributing, exhibiting, or possessing material depicting minors engaged in sexually explicit conduct. West Virginia has a tiered penalty system based on the volume of material.
Penalties for Adults
| Offense Level | Quantity of Images | Prison Sentence | Maximum Fine |
|---|---|---|---|
| Basic Felony | 50 or fewer images | 2 to 5 years | $5,000 |
| Intermediate Felony | 51 to 299 images | 3 to 15 years | $10,000 |
| Aggravated Felony | 300+ images OR violence/bestiality | 5 to 20 years | $25,000 |
The “Video Count” Rule
Under §61-8C-3(i), video files count as multiple images for sentencing purposes:
- A video clip of 5 minutes or less counts as 100 images.
- For every additional 2 minutes beyond the first 5, another 100 images are added.
This means possession of a single short video clip automatically pushes a defendant into the “Intermediate Felony” bracket (51-299 images), carrying a minimum of 3 years in prison.
Revenge Porn Laws (§61-8-28a)
West Virginia criminalizes “revenge porn” under Code §61-8-28a, titled “Nonconsensual disclosure of private intimate images.”
Elements of the Crime
A person violates this law if they:
- Knowingly and intentionally disclose an intimate image of another;
- With the intent to harass, intimidate, threaten, humiliate, embarrass, or coerce; AND
- The image was captured under circumstances where the victim had a reasonable expectation of privacy.
Penalties
- First Offense (Misdemeanor): Jail time up to 1 year and/or fines of $1,000 to $5,000.
- Second or Subsequent Offense (Felony): Prison time up to 3 years and/or fines of $2,500 to $10,000.
This law applies to adults and can also be applied to minors (though likely handled in juvenile court). It covers images originally taken consensually (e.g., during a relationship) that are later shared without permission to cause harm.
AI-Generated Imagery & Deepfakes
West Virginia has proactively updated its laws to address the rise of Artificial Intelligence.
Revenge Porn Updates
Under §61-8-28a(a)(5), the law defines “Fabricated intimate image” to include images created by AI or other computer technology that depict intimate parts. Disclosing a “deepfake” with the intent to harm someone carries the same penalties as disclosing real photos.
Child Pornography Updates
Similarly, §61-8C-3 explicitly includes “computer-generated child pornography” and states that a visual portrayal created “in whole or in part by digital manipulation, artificial intelligence, or any other means” satisfies the requirements for prosecution.
Sex Offender Registration
One of the most critical protections in West Virginia’s teen sexting law is the exemption from sex offender registration.
Teen Sexting (§61-8C-3b): Subsection (d) explicitly states: “an adjudication of delinquency under the provisions of this section shall not subject the minor to the requirements of [the Sex Offender Registration Act].”
Adult Convictions (§61-8C-3): Adults convicted of child pornography offenses must register as sex offenders, often for life, depending on the tier of the offense. This registration restricts where they can live and work and places them on a public registry.
Long-Term Consequences
Even though the teen sexting statute provides a “softer” landing than adult court, legal involvement still carries risks:
Educational Impact
Schools often conduct their own parallel investigations. Students found sharing explicit images may face suspension, expulsion, or removal from sports teams and honor societies, regardless of the court’s decision.
Digital Permanence
Once an image is shared, control is lost. Images can resurface years later, potentially affecting college admissions, future employment, and personal relationships. “Deleting” an image from a phone does not mean it is gone from the internet or cloud servers.
Social Stigma
Being the subject of a sexting investigation can lead to bullying, ostracization, and severe emotional distress for both the sender and the recipient.
Frequently Asked Questions
Is it a crime if I just possess a photo but don’t send it?
For adults, mere possession of child pornography is a felony. For minors under §61-8C-3b, possession is an act of delinquency unless you can prove the affirmative defense: that you received it unsolicited and did not share it with anyone else.
What if my boyfriend/girlfriend consented to the photo?
Consent is not a defense to child pornography or teen sexting charges regarding the creation or distribution of the image. Legally, a minor cannot consent to the production of explicit material. However, the “Romeo and Juliet” style context often influences prosecutors to use the milder §61-8C-3b statute rather than harsher charges.
Does West Virginia have a specific “Romeo and Juliet” exception?
West Virginia does not have a formal “Romeo and Juliet” exception written directly into the text of §61-8C-3b that automatically legalizes sexting between close-in-age peers (unlike some states like Texas). However, the existence of the specific juvenile statute acts as a de facto shield against adult felony charges for peer-to-peer sexting.
Can parents be liable for their child’s sexting?
Parents are generally not criminally liable for their child’s actions unless they facilitated them. However, they could potentially face civil liability if their child harms another student (e.g., through revenge porn) and the parents were negligent in supervising their child’s device usage after being warned of issues.
What should I do if I receive an unsolicited nude photo?
Do not forward it. Do not show it to friends. Delete it immediately. If you are a minor, simply possessing it without soliciting or sharing it gives you an affirmative defense, but the best way to avoid trouble is to get it off your device instantly.
Is sexting a felony in West Virginia?
For adults, yes (under §61-8C-3). For minors charged under §61-8C-3b, it is an act of delinquency, not a felony. However, revenge porn (2nd offense) is a felony for anyone convicted as an adult.
What to Do If Charged
If you or your child is contacted by law enforcement regarding sexting:
Steps to Take
- Remain Silent: Do not answer questions from police without a lawyer. “I want to speak to an attorney” is the only thing you should say.
- Do Not Consent to Searches: Police generally need a warrant to search a phone. Do not voluntarily hand over passcodes unless ordered by a court or advised by your lawyer.
- Preserve Evidence (Do Not Delete): Once you know an investigation is active, deleting evidence can lead to “destruction of evidence” charges. Let your lawyer handle how to manage the data.
- Contact an Attorney: Find a lawyer who specializes in West Virginia juvenile law and sex crimes defense.
Resources
Legal & Support
- The West Virginia State Bar – Lawyer Referral Service
- Legal Aid of West Virginia
- West Virginia Judiciary – Court Information
Safety & Education
- National Center for Missing & Exploited Children (NCMEC) – Reporting and removal tools
- Thorn – Technology to defend children from sexual abuse
- Cyberbullying Research Center – Resources on sexting and bullying
This article provides general legal information about West Virginia sexting laws as of February 2026. Laws are subject to change, and this information does not constitute legal advice. For specific legal counsel, please contact a qualified criminal defense attorney in West Virginia.