Texas law lags behind technology when it comes to addressing the problem of sexting. Thus far most of the attention has been focused, and rightly so, upon the need to address the problem of sexting among minor teenagers. Only two sections of the Texas Penal Code arguably apply to teen sexting. Section 43.26 of the Texas Penal Code makes it a third degree felony to possess a sexually explicit picture of a minor. This is a child pornography law that was designed to protect minors from predation by adults and is ill-suited to address the problem of teens texting nude pictures of themselves to others.
Teen sexting may be exceptionally stupid, damaging, and a crime, but it shouldn’t be a felony. There are measures in the works in the Texas legislature to address the problem of teen to teen sexting as a misdemeanor.
Section 43.23 of the Texas Penal Code dealing with obscenities may arguably be applicable to teen sexting. However, to qualify as an obscenity the text must depict a patently offensive representation of an ultimate sex act. The possession of an obscenity involving a child younger than 18 years of age is punishable as a state jail felony. It is unlikely that the vast majority of teen sexting would qualify as an obscenity nor should they be punishable as state jail felonies.
The Texas Penal Code is even less helpful when it comes to addressing the problem of adult sexting. The garden variety adult pervert who texts a nude picture of himself to an unsuspecting adult female in order to satisfy some perverse need has probably not violated any Texas criminal laws. The closest, but not close enough, section of the Texas Penal Code is Section 21.08 regarding indecent exposure. Texas law provides that a person is guilty of indecent exposure if he exposes his genitals to another with intent to arouse or gratify the sexual desire of any person (including himself) and is reckless about whether those viewing him may be alarmed or offended by his acts. Section 21.08 requires a “presence” and the literal terms of this section would not apply to sexting. Sexting is nothing more than 21st century indecent exposure. Modern technology has allowed sexting to become the “streaker” or “flasher” of the 21st century and should be regulated as such. Section 21.08 should be amended to include the digital transmission of images and Texas’s tort laws should be amended to provide for a civil cause of action against those guilty of this perverse misconduct.
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