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Children grow up now with more access to technology and information than any previous generation. The presence of smartphones has drastically altered how kids experience peer pressure.

This extends into early sexual experiences as well. A 2019 study showed that about 10% of children have been exposed to an explicit image by age 8, while 24% have received a nude photo request by age 13. However, the same study found that 60% of sexting between minors was mutual.

State and national laws have struggled to keep up with this unusual legal territory.

Initially, states used standard child pornography laws to charge sexting cases. However, the felony penalties often felt overzealous and unnecessarily harsh in the face of children texting each other.

A New Approach in Colorado

Currently, Colorado and 24 other states have introduced modified laws for minors caught sexting. But what defines this act? And how do new laws help balance charges for it?

Colorado: Sexting and Minors

At this point, most of us understand that a minor is a person under age 18. But for these specific juvenile laws, note that the participants must be at least 14 years old, with an age gap of less than four years. Basically, teens and their peers.

Next question: what exactly qualifies as “sexting”?

Sexting occurs when sexually explicit images are sent to or requested from someone via electronic, digital means. That could mean using a phone, laptop, tablet, or computer. “Sexually explicit” denotes any external genitalia, pubic area, buttocks, or female breasts.

A good rule of thumb to teach minors if something is sexually explicit: would it be covered by a bathing suit? Then think twice about photographing and sharing it.

In general, sexting needs to be legally addressed when:

• Images are posted without the depicted person’s permission
• Recipients did not request the image
• The recipient and/or subject suffered emotional distress
• The context of image sharing established a reasonable expectation of privacy

The danger of sexting, of course, is that no digital image remains private after it’s sent. Even the most well-intentioned friends might accidentally share it. For a minor, this can compromise the privacy and safety of their body and identity.

What If It’s Consensual?

Colorado law does account for sexting between two consenting minors. Under new legislation, it’s not a crime, but it is prohibited.

If caught, teens might have to pay a small fine — $50 — and complete an education program on the risks of sexting.

When sexting becomes nonconsensual, however, the law becomes far more involved.

Sexting Without Permission in Colorado

Let’s say a nude selfie of a classmate gets passed around the school. Your teen comes into possession of this photo. Is this a crime?

According to Colorado law, it’s a petty offense. The teen in possession of the image has 72 hours to take one of the following actions:

• Delete or destroy the image permanently.
• Report the image to a school resource officer.
• Report the image to a police officer.

If the teen does none of these things and continues to pass the photo along, they are distributing someone’s explicit image without permission. The charge then becomes a Class 2 misdemeanor.

The same charge applies if a minor sends a sexually explicit image to another without asking, especially if this causes the other emotional distress.

Both of these crimes can increase to a Class 1 misdemeanor with repeated offenses, harassment, or unwanted/unasked-for images.

Diversions

This legislation’s goal is to save minors from a permanently marred record. Previous sentencing might have forced teens to register as sex offenders. This, however, created a life-long stain on their permanent record, affecting education, employment, and even housing opportunities.

In this vein, the newer law encourages prosecutors to explore alternatives for juveniles charged with sexting. This especially goes for a first offense. In the past, minors and their parents were shocked to learn that a few texted photos amounted to “child pornography.”

Now, there is a middle ground for prosecutors to hold juveniles accountable without full adjudication as a delinquent. One such avenue is automatic expungement.

After the minor completes their sentence or education program, the court has 42 days to expunge all public records of the case. The minor does not even need to apply for this to happen.

The Bounds of CO Law

Does this mean that any sexting between juveniles will receive a light charge? No.

Certain acts and images still count as sexual exploitation of a child. These include any digital  media of a person under age 18 engaging in:

• Sexual intercourse
• Erotic fondling
• Erotic nudity
• Sexual excitement

Because this enters the territory child pornography, images of this kind can constitute felony charges with the expected consequences of jail time and fines.

As you can see, it’s worth educating your teen on sexting to protect them — from their own poor judgement, their peers, and the law.

About the Author:

Andrew Bryant is a well-respected Colorado Springs criminal attorney who has been practicing in the area for years. A Colorado native, he returned to the home he loves after graduating from the University of Kentucky College of Law. Now, he uses the knowledge he gained as an El Paso County District Attorney to fight tirelessly for his clients’ rights. He is AV-Preeminent rated, has been recognized for his work by The National Trial Lawyers, and has been named to Best of the Springs lists by The Gazette for years.