St. Mary's Law Journal


State legislation criminalizing sexting—the possession or electronic transmission of visual material capturing a minor engaged in sexual conduct—should not punish minors similarly to adults. The Adam Walsh Child Protection and Safety Act of 2006 (Walsh Act) in conjunction with the Sex Offender Registration & Notification Act (SORNA), require that any individual, including a minor, convicted of child pornography register as a sex offender. As a result, states with legislation that categorize sexting as child pornography, will require a minor with a sexting conviction to register as a sex offender. This disportionate punishment on the minor will make it difficult for them to complete future goals such as being accepted into a university or obtaining employment. State legislatures around the country agree that this is an inappropriate penalty, and as a result, new legislation is being drafted to ensure that the punishment is more appropriately suited to the crime. State legislators should pass bills similar to Texas Senate Bill 407. Prior to 2011, a minor convicted in Texas for sexting, faced potential felony charges and was required to register as a sex offender for life. The current legislation, Texas Senate Bill 407, replaced the former sentencing guidelines with the current graduated misdemeanor system. Under the graduated misdemeanor system, a first-time offender will have a Class C misdemeanor charge, a reprimand that will not have life-altering consequences. Texas Senate Bill 407 also allows judges to require parental attendance of the child’s hearing in hopes of increasing parental involvement and future incidents from occurring. To mitigate the potential punishments, Texas attorneys who represent a minor accused of sexting are encouraged to investigate if there was a dating relationship between the victim and their client. Additionally, the defense attorney, in the same proceedings, should research educational programs and their availability.


St. Mary's University School of Law