Is Sexting Illegal in Virginia

Whether sexting is illegal in Virginia depends on the ages of the people involved and on what was sent. Images of adults exchanged consensually are treated differently from images of a minor, and a minor who sends an image of himself can still fall within statutes written about child pornography. Virginia does not have one sexting statute that answers the question. Several sections can apply to the same exchange, including Va. Code § 18.2-374.1:1 on possession, reproduction, and distribution of child pornography, Va. Code § 18.2-374.1 on production, Va. Code § 18.2-374.3 on the use of communications systems to facilitate certain offenses involving children, and Va. Code § 18.2-386.2 on unlawful dissemination or sale of images of another. Which section applies turns on details that people often treat as unimportant, such as who appears in the image, who sent it, and who kept a copy. If a message on a phone has led to police contact, call Law Offices Of SRIS, P.C. at (888) 437-7747.

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When the Image Shows an Adult

An image of an adult, made and exchanged between adults who agreed to it, sits outside the child pornography statutes. That is the starting point people usually have in mind when they ask the question.

The exchange can still become a criminal matter later. Va. Code § 18.2-386.2 addresses unlawful dissemination or sale of images of another and is a Class 1 misdemeanor. The section is what people commonly describe as a revenge porn statute, and it becomes relevant when an image that was shared privately is passed on to someone else.

The 2024 amendment to that section, 2024 Va. Acts ch. 697, extended its coverage to created, adapted, or modified images. That change matters as editing tools have become ordinary. An image that was assembled rather than photographed can fall within the section, which removes a line people once assumed protected them.

Two practical points follow. First, agreement to receive an image is not agreement to have it forwarded, and the two are separate questions under Virginia law. Second, deleting a message does not remove it from a recipient’s device, from a backup, or from a service provider’s records, so a private exchange is rarely a temporary one.

When the Image Shows a Minor

Once a person under 18 appears in the image, a different group of statutes applies, and the sender’s own age does not remove the exchange from them. That is the part of the answer that most surprises families.

Va. Code § 18.2-374.1:1 addresses possession, reproduction, and distribution of child pornography. Knowing possession is a Class 6 felony, and a second or subsequent possession offense is a Class 5 felony. Subsection C punishes knowingly reproducing, selling, giving away, distributing, electronically transmitting, displaying, purchasing, or possessing with such intent, punishable by five to 20 years with a five-year mandatory minimum on a second offense. Subsection D is a Class 4 felony.

Va. Code § 18.2-374.1 addresses production. The 2024 amendment, 2024 Va. Acts ch. 262, added that for clause (ii) of the definition, the minor depicted does not have to actually exist. Generated or composite material is therefore not automatically outside the section.

Va. Code § 18.2-374.3 covers the use of communications systems to facilitate certain offenses involving children. It is a Class 6 felony under subsection B, a Class 5 felony under subsections C, D, and E, and a Class 1 misdemeanor under subsection D1. Because a phone is a communications system, the way a message was sent can matter alongside what it contained.

Frequently Asked Questions

Is sexting between two adults illegal in Virginia?

Images of adults exchanged consensually are treated differently from images of a minor, and the child pornography statutes are written around minors. The exchange can still lead to a charge later. Va. Code § 18.2-386.2 addresses unlawful dissemination or sale of images of another and is a Class 1 misdemeanor, so what happens to an image after it is received can matter as much as the original exchange did.

Can a teenager be charged for sending a photo of himself?

A minor who sends an image of himself can still fall within statutes written about child pornography, because those sections are written around the content of the image rather than around who created it. Va. Code § 18.2-374.1:1 and Va. Code § 18.2-374.1 are both potentially in play. Families who assume a self-sent image is outside the law are working from an assumption the statutes do not support.

What does Va. Code § 18.2-374.1:1 cover?

It addresses possession, reproduction, and distribution of child pornography. Knowing possession is a Class 6 felony, and a second or subsequent possession offense is a Class 5 felony. Subsection C reaches knowingly reproducing, selling, giving away, distributing, electronically transmitting, displaying, purchasing, or possessing with such intent, punishable by five to 20 years with a five-year mandatory minimum on a second offense. Subsection D is a Class 4 felony.

Does it matter that an image was generated rather than photographed?

It can matter less than people expect. The 2024 amendment to Va. Code § 18.2-374.1, 2024 Va. Acts ch. 262, added that for clause (ii) of the definition, the minor depicted does not have to actually exist. On the adult side, the 2024 amendment to Va. Code § 18.2-386.2, 2024 Va. Acts ch. 697, extended that section to created, adapted, or modified images. Both changes narrow an assumption people commonly make.

What is Va. Code § 18.2-374.3?

It addresses the use of communications systems to facilitate certain offenses involving children. The section carries a Class 6 felony under subsection B, a Class 5 felony under subsections C, D, and E, and a Class 1 misdemeanor under subsection D1. Because messages sent from a phone travel over a communications system, this section can accompany other charges arising from the same exchange rather than replacing them.

Can forwarding someone else’s image create a charge?

Forwarding is treated as its own conduct rather than as part of the original exchange. For images of adults, Va. Code § 18.2-386.2 addresses unlawful dissemination or sale of images of another as a Class 1 misdemeanor. Where a minor appears in the image, subsection C of Va. Code § 18.2-374.1:1 reaches knowingly distributing or electronically transmitting, among other conduct. The person who forwards is not merely a bystander under either section.

Does sex offender registration follow a sexting charge?

Va. Code § 9.1-902 lists registrable offenses by Tier, and tier assignment frequently turns on the offense date. That makes registration a question about the specific section charged and when the conduct is alleged to have occurred, rather than one that can be answered from the word sexting alone. It is worth raising with counsel early, because it affects how a case is evaluated from the beginning.

What should a person do after police ask about messages on a phone?

Do not delete anything, and do not try to explain the exchange in an interview before speaking with a lawyer. Deleting can create a separate problem, and an explanation given without counsel often supplies the knowledge element the statutes describe. Preserve the device, note who had access to it, and have the charging documents or the police request reviewed before responding.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has practiced since 1997 and concentrates in criminal defense, including internet and computer-related allegations of the kind described on this page. Mr. Sris and the firm’s Of Counsel attorneys examine what was sent, who appears in the image, the ages involved, and how the material was obtained, because those facts determine which sections apply. The firm maintains 24/7 phone intake. Request a consultation. Call (888) 437-7747.

This page provides general information and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

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