Sexting is the act of using some form of electronic messaging to send sexually explicit messages and images to another person. In Virginia, sexting is not necessarily illegal. If two consenting adults want to send sexually suggestive messages and images to each other, they are completely free to do so. Of course, this assumes that the images being sent are legal. If they are, it is of no concern to the state how two adults choose to communicate.

However, sexting quickly becomes a sex crime when it involves a minor. To better understand Virginia’s law on sexting, we examine when sexting is considered a crime. We’ll also discuss the penalties for illegal sexting, as well as whether a minor is tried in juvenile court or an adult court when accused of sexting.

When Does Virginia View Sexting as a Crime?

In Virginia, sexting is penalized under the same laws that prohibit child pornography. The reason for this is that sexting itself often involves the creation of pornography, and when it is a minor that is sexting, then they are engaged in the act of making child pornography.

This may seem a bit controversial. Certainly, if a teenage girl is sexting with her boyfriend, they may not realize they are consciously making a choice to create and distribute child pornography; and her boyfriend may not realize he is choosing to possess child pornography by saving the image. However, that is what happens when teenagers engage in sexting.

Child pornography is defined as sexually explicit visual material which utilizes or has as a subject an identifiable minor, and does not require proof of the actual identity of the identifiable minor. This definition is broader than many people realize.

Additionally, Virginia’s law doesn’t make a distinction between adults and minors engaging in the production, distribution or possession of child pornography. This means that in our example above, it doesn’t matter whether either party is an adult or a minor. Each could still be tried for possessing child pornography by sexting with their partner.

Will a Minor Be Tried in Juvenile Court or Adult Court?

Virginia has a Juvenile and Domestic Relations (JDR) District Court which is setup to resolve most issues regarding children. However, this court can only find an adult guilty of misdemeanors, so if an adult is charged with a felony the charge will eventually have to be resolved in a Circuit Court. On the other hand, in general, juvenile offenders are charged and the cases are tried or otherwise resolved in the JDR court.

The Judges in the JDR court have the flexibility to make decisions based on their own discretion much more than in other courts. They may decide that the best course of action is to have the juvenile offender go through a treatment program or do community service rather than serve time in a correctional facility. When a juvenile is tried in juvenile court, they are legally adjudicated delinquent rather than being found guilty of a crime as in adult cases. This is one of the reasons that the existence and outcome of juvenile JDR cases generally are not subject to public disclosure as are adult cases.

Virginia law does allow minors to be tried in an adult court if they are over the age of fourteen and have been charged with a felony. This means that a juvenile that is found to have engaged in the creation, distribution, or possession of child pornography through the act of sexting could be tried as an adult and, as such, face the same penalties as an adult offender.

This can result in a minor being forced to register as a sex offender. The Virginia Sex Offender Registry requires every juvenile who is found delinquent of a certain enumerated offenses to register on the Registry.

What Are the Penalties for Sexting?

The act itself determines the penalties for sexting. The laws about child pornography focus on the distribution and possession of the material in question. The penalty for creation is different from the penalty for possession and so on. The penalties, sorted by their severity, are as follows:

  • Possession: The possession of child pornography is a Class 6 felony. This means you are facing between one and five years behind bars, as well as a fine of up to $2,500. Repeating the crime will see the charge upgraded to a Class 5, which could mean up to ten years in prison.
  • Distribution: Distributing child pornography can result in between five and twenty years behind bars.
  • Creation (Ages 15-17): The penalties for the creation of child pornography varies depending on the age of the child. If the minor is between the ages of 15 and 17, then the punishment could be between one and twenty years behind bars. If the older party is more than seven years older than the minor, they face a minimum of three years behind bars and up to thirty years for the first offense, and a minimum mandatory sentence of ten years and up to thirty years for any subsequent offenses.
  • Creation (Under 15): If the minor depicted in child pornography is under fifteen, then the penalty is between five to thirty years behind bars. If there is more than a seven-year difference between the defendant’s age and the age of the minor, then there is a mandatory minimum sentence of five years for a first offense. Subsequent offenses would result in a mandatory minimum sentence of fifteen years.

When Should I Speak to an Attorney?

Sexting can result in very serious consequences. While we looked at the penalties of sexting from a legal perspective, there are the social ramifications of facing charges like this. Having a conviction for child pornography on your criminal record seriously adversely affect your life and can make it much more difficult to find a decent job.

The best thing to do when you face charges like this is to reach out to an experienced attorney immediately. You are going to need a knowledgeable ally on your side, but they’re going to need time to investigate the circumstances of your situation and put together a strategy. The more time they have to do so, the better. So don’t hesitate to reach out to an attorney about defending you today.