Is Sexting Illegal in New York

It depends on the ages of the people involved and on what was sent. Images of adults exchanged consensually between those adults are treated differently under New York law from images of a person who falls within the age thresholds in Penal Law Article 263. Those situations are governed by separate statutes with different elements and different consequences. A minor who sends an image of themselves can still fall within provisions written about sexual performances by a child, because those sections describe the material and what was done with it. Sharing an adult’s intimate image onward without that person’s consent moves the question again, this time toward Penal Law § 245.15. What was sent, what was done with it, and the ages of everyone involved determine the answer. If you have been contacted about a matter like this, the 24/7 phone intake at Law Offices Of SRIS, P.C. accepts calls at (888) 437-7747.

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Adults, Consent, and Sharing an Image Onward

Where every person depicted is an adult and the exchange stayed between them, Article 263 is not the framework, because those sections are written about sexual performances by a child. The picture changes when an adult’s intimate image is passed on to someone who was never meant to see it.

Penal Law § 245.15, unlawful dissemination or publication of an intimate image, is a class A misdemeanor. Its official heading names both dissemination and publication, so sending an image to one person and posting it for an audience are both within the section. It requires intent to cause harm to the emotional, financial or physical welfare of another, intentional dissemination or publication of a still or video image showing intimate parts exposed or sexual conduct, that the depicted person be reasonably identifiable, and that the accused knew or should have known that the depicted person did not consent.

Consent to receive an image and consent to its onward distribution are different things, and the section is concerned with the second. The statute also carries exceptions, covering reporting unlawful conduct, law enforcement, legal and medical contexts, voluntary public exposure, and legitimate public purpose. Whether one of those exceptions covers a given situation is a question to raise early.

When the Person in the Image Falls Within Article 263

Article 263 changes the analysis entirely, and it does not use one age across its sections. Penal Law § 263.16, possessing a sexual performance by a child, is a class E felony written around a child less than sixteen, and 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, with obscenity as an added element. 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.

Those thresholds are not interchangeable, and describing Article 263 as though it applied one age to every section misstates it. A section that does not reach the age of the depicted person does not reach the case. The sections also separate possession from production, direction, and promotion, so what a person is said to have done with the material matters alongside how old the depicted person was.

Consequences follow the section of conviction. Correction Law § 168-a, which supplies the definitions for New York’s registration scheme, treats Article 263 convictions as registrable.

Minors, Their Own Images, and Material Sent to a Minor

A minor who sends an image of themselves is often surprised to learn that Article 263 can be discussed at all. The sections are written around what the material is and what was done with it, and they do not contain an exception phrased around the depicted person having been the sender. That is why an incident involving only young people can still be evaluated under statutes titled around sexual performances by a child.

A separate provision addresses material directed at a minor. Penal Law § 235.21, disseminating indecent material to minors in the second degree, is a class E felony with three subdivisions: knowingly selling or loaning to a minor, for monetary consideration, matter depicting nudity, sexual conduct or sado-masochistic abuse that is harmful to minors; knowingly exhibiting such a motion picture or show to a minor, or admitting a minor to it, for consideration; and knowingly using a computer communication system to initiate or engage in such a communication with a minor.

Section 235.21 is not itself registrable under Correction Law § 168-a, which is one reason the section named in a charge matters as much as the conduct described.

Frequently Asked Questions

Is sexting between two adults illegal in New York?

An intimate exchange between adults who both consent is not what Article 263 addresses, since those sections concern sexual performances by a child. If an adult’s intimate image is disseminated or published without consent and with intent to cause harm to the emotional, financial or physical welfare of another, Penal Law § 245.15 comes into play regardless of how the image was originally obtained.

When does an image of a minor bring Article 263 into play?

The sections turn on the age of the depicted person and on what the material shows. Penal Law §§ 263.11 and 263.16 are written around a child less than sixteen, and Penal Law § 263.15 is written around a child less than seventeen. What was done with the material also matters, because the sections separate possessing it from producing, directing or promoting it.

Can a minor be charged for sending an image of themselves?

The statutes are written around the material and the conduct rather than around who the depicted person is in relation to the sender, so provisions concerning sexual performances by a child can be raised in that situation. If a young person in your household has been contacted about an incident of this kind, the section named in any paperwork is the detail to look at first.

Is sharing a photo that was sent to you a separate problem?

It can be. Receiving an image and passing it on are different acts, and different statutes describe them. Where the depicted person is an adult, onward sharing without consent points toward Penal Law § 245.15, which reaches dissemination and publication alike. Where the depicted person falls within the Article 263 thresholds, the relevant distinction is between possessing material and producing, directing or promoting it.

Does the other person asking for the photo settle the consent question?

Not by itself. Under Penal Law § 245.15 the consent that matters is consent to the dissemination or publication, framed as what the accused knew or should have known. A person can agree to receive an image, or to appear in one, without agreeing that it may be sent onward. Those are separate permissions, and only the second answers the element.

Does it matter whether the image was created or altered by digitization?

Penal Law § 245.15 reaches an image “including an image created or altered by digitization,” so generated or modified material is addressed within the statutory text. Subdivision 2(d) supplies the digitization definition, and Penal Law §§ 263.11, 263.15 and 263.16 cross-reference it. If a matter involves altered or generated material, that definition and its cross-references are part of the analysis rather than an afterthought.

Does it matter whether the material was obscene?

It matters to which section applies. Penal Law § 263.16, possessing a sexual performance by a child, is a class E felony and the performance need not be obscene. Penal Law § 263.11 is also a class E felony but carries obscenity as an element. The two sections share the same age threshold, a child less than sixteen, and differ on that point.

Is Penal Law § 235.21 an Article 263 charge?

No. Disseminating indecent material to minors in the second degree is its own class E felony, with three subdivisions covering sale or loan for monetary consideration, exhibition or admission for consideration, and use of a computer communication system. It is not registrable under Correction Law § 168-a, while Article 263 convictions are. Confusing the two overstates or understates what is at stake. Request a consultation.

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 was founded in 1997. Matters of this kind are handled by Mr. Sris and the firm’s Of Counsel attorneys, who contract directly with the firm. If you have questions about which statute a situation touches, what its elements require, or what a particular section carries after conviction, those points are set out for you in plain terms at the beginning. Request a consultation. Calls to (888) 437-7747 reach the firm’s 24/7 phone intake.

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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