Texas Sexting Law

Sexting is the latest moral panic du jour. In Texas, we have decided that the best way to produce healthy young adults is for the State to criminalize normal consensual teen behavior. Lest our young adults grow up without a healthy fear for the arbitrary and limitless power of law enforcement. Like Lenny and his rabbits sometimes the State can care too much.

How much does Texas love our young adults? Let us count the ways teenagers can be destroyed by the State for sexting.

While you won’t find “sexting” in the penal code, the act of sending nude pics of teens violates a few statutes. The first is possession of child pornography.

§ 43.26. POSSESSION OR PROMOTION OF CHILD
PORNOGRAPHY. (a) A person commits an offense if:
(1) the person knowingly or intentionally possesses
visual material that visually depicts a child younger than 18 years
of age at the time the image of the child was made who is engaging in
sexual conduct; and
(2) the person knows that the material depicts the
child as described by Subdivision (1).
(b) In this section:
(1) “Promote” has the meaning assigned by Section
43.25.
(2) “Sexual conduct” has the meaning assigned by
Section 43.25.
(3) “Visual material” means:
(A) any film, photograph, videotape, negative,
or slide or any photographic reproduction that contains or
incorporates in any manner any film, photograph, videotape,
negative, or slide; or
(B) any disk, diskette, or other physical medium
that allows an image to be displayed on a computer or other video
screen and any image transmitted to a computer or other video screen
by telephone line, cable, satellite transmission, or other method.
(c) The affirmative defenses provided by Section 43.25(f)
also apply to a prosecution under this section.
(d) An offense under Subsection (a) is a felony of the third
degree.
(e) A person commits an offense if:
(1) the person knowingly or intentionally promotes or
possesses with intent to promote material described by Subsection
(a)(1); and
(2) the person knows that the material depicts the
child as described by Subsection (a)(1).
(f) A person who possesses visual material that contains six
or more identical visual depictions of a child as described by
Subsection (a)(1) is presumed to possess the material with the
intent to promote the material.
(g) An offense under Subsection (e) is a felony of the
second degree.

First, what is the affirmative defense under 43.25(f)? Basically, cops (acting in an official capacity), spouses, and those within 2 years of age of the child have a defense at trial. Like all affirmative defenses the defendant can still be arrested and prosecuted for the offense.

My question is why just a two year window? Compare this to the affirmative defense to having sex with someone under 17 which has a 3 year “Romeo and Juliet” affirmative defense. According to our laws, it’s worse for a 18 year old to look at a naked 15 year old on his cell phone, than it is for that 18 year old to have sex with that 15 year old. A strange sense of morality this penal code has.

If the State decides not to go the child porn route they sexters could also be charged with obscenity.

§ 43.23. OBSCENITY. (a) A person commits an offense if,
knowing its content and character, he wholesale promotes or
possesses with intent to wholesale promote any obscene material or
obscene device.
(b) Except as provided by Subsection (h), an offense under
Subsection (a) is a state jail felony.
(c) A person commits an offense if, knowing its content and
character, he:
(1) promotes or possesses with intent to promote any
obscene material or obscene device; or
(2) produces, presents, or directs an obscene
performance or participates in a portion thereof that is obscene or
that contributes to its obscenity.
(d) Except as provided by Subsection (h), an offense under
Subsection (c) is a Class A misdemeanor.

Children are sexually confused and frustrated enough in Texas without having to worry about the State’s Mutaween. Parents, not cops and prosecutors, should define what is acceptable for their children.