What Happens When Minors Sext in Illinois?

The ubiquitous presence of phones and computers in children’s lives has created new social questions for parents, schools, and lawmakers.

One detective in Illinois found that 60% of “sextortion” online comes from peers, not strangers. The other 40%? It comes from internet gaming.

As if that wasn’t terrifying enough, state and national legislation 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 Illinois

House representatives in Illinois have approved House Bill 24 to go to the Senate Floor, which would require a sexting segment in any Illinois school with a sex education program. In other words, it wouldn’t require sex education in general, but it would require current curriculums to add information about sexting.

How does this change fit into current laws that address sexting between minors?

Current Illinois Sexting Laws

Nationwide, sexting is often prosecuted under child pornography charges. This requires a convicted person to register as a sex offender as part of their punishment.

Many states, however, have softened their laws in the case of minors. Illinois forms part of that group. Our state charges minor sexting cases under juvenile supervision laws, which allows the defendants to avoid a delinquency record and sex offender registration.

But the legal definition is still quite narrow. If they choose, prosecutors can prosecute sexting by minors under harsher laws.

What Exactly Is Sexting Between Minors?

“Sexting” occurs when “indecent visual depictions” of external genitalia, pubic area, buttocks, or female breasts are sent to or requested from someone via digital means. That could mean using a phone, laptop, tablet, or computer.

It’s generally understood that a minor is a person under age 18. The reduced penalties for sexting only apply when both parties are under age 18.

A good rule of thumb to teach minors: would this part of your body be covered by a bathing suit? Then think twice about photographing and sharing it.

In general, sexting needs legal redress 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 is that no digital image remains private after you hit “send.” Even the most well-intentioned friends might accidentally share something.

It’s also been observed that many minors sext due to peer pressure, not because they actually want to do it. This can compromise the privacy and safety of their identity and body against their will. House Bill 24 would seek to educate students on these risks.

If minors are caught sexting — with or without permission from the sender or receiver — how does Illinois charge this?

Juvenile or Adult Court in IL

Minors who are accused of committing a crime typically go through the juvenile justice system. However, for minors age 13 and older, some cases will be transferred to adult court to face harsher penalties.

The judge decides what’s in the best interest of the minor: trying them in juvenile court or adult court.

Juvenile penalties. In the case of minors sexting each other, Illinois will opt for less permanent, less confining penalties first. For instance, if a minor in Illinois is involved in the electronic dissemination of an indecent visual image, the court can order the minor to go to counseling or perform community service.

For a lighter offense, the minor defendant might be adjudicated under supervision rather than spending any time imprisoned. For more serious offenses, they might be forced to pay a fine, serve probation, or serve time in a juvenile facility.

Adult penalties. An adult court conviction for child pornography or a similar crime will evoke more drastic penalties, including lengthy prison sentences, steep fines, and a felony record. In many cases, sex offender registration may also be required.

About the Author: Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, murder, and drug crimes. His work has been recognized by Avvo, Expertise, National Trial Lawyers, and others, and he has been featured on countless news outlets for his experience and knowledge in criminal law.