Sexting Laws and the Digital Age
The majority of sexting laws are merely interpretations of laws that already exist, namely child pornography (where underage sexting takes place), sexual harassment (when the attention is unwanted and/or comes from someone in a position of power, such as an employer), sexual exploitation (where the case involves a direct manipulation of power, as with a child or a therapist), or anti-bullying legislation (where the sexual texts and photos are used to harm an individual). Some places in the United States or its protectorates have developed legislation specific to sexting, but the majority have not; sexting's greatest legal presence remains as a part of the application of other laws.
When underage sexting first became an issue, minors who were found with sexually explicit photos or videos of other minors were charged with possession of child pornography, while those who sent these media were charged with distribution of child pornography. While this often seems severe, in the early days of establishing sexting laws, many such cases were intended to make examples of offenders and discourage this practice. In other cases, specifically those circumstances whereby students mass-distributed photos of other students, sexting crossed over into the domain of anti-bullying laws, many of which were still being developed during the rapid rise in the popularity of sexting.
State Sexting Laws
While many state governments have focused on education and reducing sentences for sexters so that minors who commit these offenses are not branded sex offenders and forced to register with a database, many other states have simply rewritten local law so that sexting can carry a harsher penalty. States such as Georgia and Pennsylvania have amended their laws so that mobile devices are now addressed as one of the means by which unlawful and inappropriate content can be distributed; this proviso was unnecessary prior to the digital age.
When both sexters are over the age of 18, their sexting practice is most likely not illegal, unless it involves some special circumstances. In such cases, there are no laws that specifically dictate when and how sexting can be used, but the messages themselves can fall under the purview of other, already existent legislation and can be used to demonstrate that a related crime has occurred.
Sexual Exploitation Charges
Sexual exploitation, according to the United Nations' Office of the High Commissioner for Human Rights (UNCHR), is “the abuse of a position of vulnerability, differential power, or trust for sexual purposes” or “forced/coerced sex trade in exchange for material resources, services, and assistance”. In these instances, sexting records may be requested in court or when pressing charges, as evidence of a violation.
Sexual Harassment Case
While not all sexting laws apply to the exchange of messages between minors, the vast majority do. All laws that refer to sexting exist to protect those who are considered vulnerable in the eyes of the law, so that this activity, which is innocent and fun in the right hands, does not become a tool to harm others.