Miami Legal Tips Blog

Legalizing Teen Sexting in Florida

sextingIn a state where just about every legal initiative sounds like it has a fighting chance of succeeding, it might make sense to someone somewhere to start a drive to legalize sexting – where people send explicit photos and/or messages to others via text messaging – among teenagers. No matter how off the wall that sounds.

But that’s not quite the case in Florida. Instead, the Sunshine State has actually barred minors from sending each other those sorts of messages. Trouble is, existing law makes a first offense a civil infraction rather than a criminal one.

The problem? Florida law evidently doesn’t give a court jurisdiction over civil infractions that involve juveniles. Which essentially means that juvenile sexting can’t be prosecuted under the current statute covering the offense. This currently applies to not just the first offense, but also second or later offenses, which would be considered criminal, except for the fact that the first offense can’t be criminally prosecuted…which means there couldn’t technically be a second or later offense.

Not so fast, though. Juveniles who might come to the conclusion that sexting is completely not prosecutable in Florida could have another thing coming. They could conceivably be prosecuted under other statues, such as Florida’s general obscenity-as-to-minors law, or under a ban on child pornography, should an image contain a lewd showing of genitals.

So, what to do? According to an appellate court opinion addressing the matter, “…only the legislature can add to the sexting statute to set out the procedure for the prosecution and determination if there has been a violation of the first offense. Until that is effectuated by the legislature, we are bound to the letter of the law and ‘must apply a statute as [we] find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation.’”

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