Sexting Charges Lawyer New York

A sexting allegation in New York is not one charge with one set of elements. The statute a prosecutor reaches for depends on how old the people shown in the material were, on whether the person who received it was a minor, and on where the material went after it was sent. When everyone depicted is an adult and the exchange was consensual between them, the sexual performance statutes are not the framework. When the material shows a person young enough to fall inside Penal Law Article 263, the analysis changes, and Article 263 does not apply a single age across its sections. Penal Law §§ 263.11 and 263.16 are written around a child less than sixteen. Penal Law § 263.15 is written around a child less than seventeen. Penal Law § 235.21 addresses indecent material knowingly directed to a minor, and Penal Law § 245.15 addresses an intimate image disseminated or published with intent to cause harm. Sorting out which of those provisions the reported facts actually touch is the first substantive task in the case.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., and the firm’s Of Counsel attorneys defend these matters in New York. Request a consultation. The firm’s 24/7 phone intake accepts calls at (888) 437-7747.

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How the Ages of the People Involved Decide Which Statute Applies

New York does not have a statute called sexting. Conduct described that way is prosecuted under provisions written for other purposes, and the ages of the people involved control which of those provisions is available to the prosecution.

Where the material depicts a child, Article 263 governs, and its sections do not share one age line. Penal Law § 263.16, possessing a sexual performance by a child, is a class E felony and is written around a child less than sixteen; the performance need not be obscene. Penal Law § 263.11, possessing an obscene sexual performance by a child, is also a class E felony and also uses a child less than sixteen, but it carries the obscenity element as well. Penal Law § 263.15, promoting a sexual performance by a child, is a class D felony, reaches a person who produces, directs or promotes the performance, and is written around a child less than seventeen. Treating those thresholds as interchangeable misstates the statutes, and in a particular case the difference can decide whether a section reaches the alleged facts at all.

Where the material depicts an adult, Article 263 is not the frame. Penal Law § 245.15, unlawful dissemination or publication of an intimate image, is a class A misdemeanor. It rests on intent to cause harm to the emotional, financial or physical welfare of another, on the depicted person being reasonably identifiable, and on the accused having known or having had reason to know that the depicted person did not consent.

Where the accusation concerns what was sent to a minor rather than what the material depicted, Penal Law § 235.21, disseminating indecent material to minors in the second degree, is the provision to examine. It is a class E felony with three subdivisions, covering sale or loan to a minor for monetary consideration, exhibition or admission for consideration, and use of a computer communication system to communicate with a minor.

Consequences after conviction follow the statute rather than the label. Correction Law § 168-a supplies the definitions for New York’s registration scheme and treats Article 263 convictions as registrable. Penal Law § 235.21 is not registrable under that section.

How Mr. Sris and the Firm’s Of Counsel Attorneys Handle These Cases

Work begins with the charging instrument and the ages stated in it. Because the Article 263 sections use different age thresholds, and because § 245.15 and § 235.21 rest on entirely different elements, the first review compares what the accusation alleges against what each cited section actually requires. A count naming a section whose age threshold does not match the alleged facts presents a different question from a count whose age threshold matches but whose conduct element does not.

The second review concerns state of mind. Section 245.15 requires intent to cause harm to the emotional, financial or physical welfare of another, together with knowledge, actual or constructive, that the depicted person did not consent. Section 235.21 requires that the described conduct be knowing. The Article 263 sections separate the person who possesses material from the person who produces, directs or promotes it, and those are not interchangeable descriptions of a single course of conduct.

The third review covers the statutory exceptions and definitions. Section 245.15 carries exceptions that cover reporting unlawful conduct, law enforcement, legal and medical contexts, voluntary public exposure, and legitimate public purpose. Its subdivision 2(d) supplies the digitization definition cross-referenced by Penal Law §§ 263.11, 263.15 and 263.16, so whether an image was created or altered by digitization can matter under more than one section.

From there, Mr. Sris and the firm’s Of Counsel attorneys turn to the consequences the client is facing, including registration exposure under Correction Law § 168-a where an Article 263 count is charged, and appear in the New York courts where the matter is pending.

Mr. Sris and the Firm’s Of Counsel Attorneys

Mr. Sris is the Owner and Founder of the firm and is a former prosecutor. He is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. Time spent on the charging side of criminal matters shapes how a charging instrument is read on the defense side: the questions asked are about what each element requires and what a record would have to establish, rather than about how the accusation sounds when it is first described.

Matters are handled by Mr. Sris and the firm’s Of Counsel attorneys, who contract directly with the firm. The firm was founded in 1997 and has defended criminal matters since then.

An allegation built on images and a phone is frequently a person’s first contact with the criminal courts, and the concern reaches past the courtroom. An Article 263 count carries registration exposure under Correction Law § 168-a, while a count under Penal Law § 235.21 does not carry that consequence under the same section. What a client is told about those consequences is drawn from the section named in the accusation rather than from the way the incident has been characterized elsewhere. Those distinctions are explained at the outset so that the exposure being weighed is the real one. Request a consultation. Calls to (888) 437-7747 reach the firm’s 24/7 phone intake.

Frequently Asked Questions

Is there a sexting statute in New York?

New York does not have a statute that uses the word sexting. If you are accused of something described that way, the charge will be brought under a provision written for another purpose. Depending on the ages of the people depicted, on who received the material, and on how it was shared, that provision may be a section of Penal Law Article 263, Penal Law § 245.15, or Penal Law § 235.21. Each carries its own elements and its own classification, so the first question worth asking about your case is which provision the prosecution has actually charged and whether the alleged facts fit it.

Why do the Article 263 sections use different ages?

The sections were written separately and they describe different conduct. Penal Law § 263.11, possessing an obscene sexual performance by a child, and Penal Law § 263.16, possessing a sexual performance by a child, are both class E felonies and are both written around a child less than sixteen. Penal Law § 263.15, promoting a sexual performance by a child, is a class D felony, reaches a person who produces, directs or promotes the performance, and is written around a child less than seventeen. Collapsing those thresholds into one age misstates the law, and in your case the difference may decide whether a section applies at all.

Does it matter that the image showed an adult?

It matters a great deal. Article 263 is written about sexual performances by a child, so material depicting only adults does not fit those sections. An accusation involving an adult’s image points instead toward Penal Law § 245.15, unlawful dissemination or publication of an intimate image, which is a class A misdemeanor. That section is not about the image standing alone. It requires intent to cause harm to the emotional, financial or physical welfare of another, that the depicted person be reasonably identifiable, and that you knew or should have known the depicted person did not consent.

What conduct does Penal Law § 235.21 describe?

Disseminating indecent material to minors in the second degree is a class E felony with three subdivisions. The first covers knowingly selling or loaning to a minor, for monetary consideration, matter depicting nudity, sexual conduct or sado-masochistic abuse that is harmful to minors. The second covers knowingly exhibiting such a motion picture or show to a minor, or admitting a minor to it, for consideration. The third covers knowingly using a computer communication system to initiate or engage in such a communication with a minor. If you are charged under this section, the subdivision alleged tells you which set of facts the prosecution has committed to.

Does every charge of this kind carry sex offender registration?

No. Correction Law § 168-a supplies the definitions for New York’s registration scheme, and it treats Article 263 convictions as registrable. Penal Law § 235.21 is not registrable under that section. Because the registration consequence follows the statute of conviction rather than the description attached to the conduct, the section named in the accusation, and the section named in any resolution of the case, both matter to what happens once the case ends. That is a reason to examine the charge closely before decisions are made about how to proceed. Request a consultation.

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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