Let’s Talk About Sext

by Luke Martin, MBA, JD
Staff Attorney
The Therapist
September/October 2020
Updated November 2022 by Kristin W. Roscoe, JD (CAMFT Staff Attorney) 

In 2013, a 16-year-old boy who attended Etiwanda High School in Rancho Cucamonga was arrested for the distribution of child pornography when he posted nude photos of his classmates on his Twitter account.¹  In 2016, the California governor signed into law Assembly Bill 2536, which allows schools to suspend or expel students who engage in activities considered cyber sexual bullying. As of 2022, the state of California does not have laws that are tailored specifically to teen sexting.²

Therapists who are mandatory reporters often inquire as to their reporting obligations under the Child Abuse and Neglect Report Act (CANRA) when it comes to sexting involving minors. Because technology has accelerated beyond the initial scope of the law, therapists often struggle with navigating the gray areas of whether sexting requires a mandatory report. A therapist who knows or has reasonable suspicion that their client is sexting may be required to report this information under CANRA.

What is Sexting? Sexting is defined by the courts to mean the exchange of sexually explicit text messages, including photographs, via a cellular device^.3   The two root words, sex and texting, have been combined to describe this specific practice.

Having erotic conversations or sharing intimate photos with a partner has increased with the introduction of online dating applications. No longer do individuals court with boom boxes outside their romantic interest’s window à la John Cusack in Say Anything. These romantic gestures have been replaced by a few keystrokes and the electronic transmission of images. Just as there were concerns about certain courting behaviors in the past, this new form of wooing may trigger mandatory reporting obligations for psychotherapists. 

CANRA
The most challenging aspect of sexting is determining which messages qualify as something that must be reported under CANRA. This law requires psychotherapists to report to law enforcement or child welfare agencies when the therapist, in their professional capacity, has knowledge of or reasonable suspicion of sexual exploitation of a minor. ⁴

CANRA statute 11165.1 (c) addresses child pornography in its definition of sexual exploitation as “[c]onduct involving matter depicting a minor engaged in obscene acts.”⁵   For therapists who find themselves dealing with a situation in which they have reasonable knowledge or suspicion that their minor clients are being exploited or have been involved with obscene acts, CANRA creates an exception to the psychotherapist patient privilege and compels these mandated reporters to report known or suspected child abuse to child protective services agencies or law enforcement authorities.⁶

Obscene Sexual Conduct
Does a text message with an image of a minor in the bath that is sent to a family member need to be reported? Does a text message with an image of a minor in the bath that is sent to a known pedophile need to be reported? These are the challenging situations that clinicians are regularly faced with.

What we do know is that if a message meets the qualification of “obscene sexual conduct,” the activity would ultimately need to be reported.⁷   Since a specific definition of obscene sexual conduct does not exist in CANRA, we have to craft a narrow definition based on the separate definitions of obscene and sexual conduct.⁸   Something obscene “lacks serious literary, artistic, political, or scientific value.”⁹  A good way of looking at this is whether a reasonable clinician would find the subject matter offensive.¹⁰   The law defines “sexual conduct” in relevant part as the “[e]xhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the  viewer.^”11

By combining these definitions, we arrive at this assessment: If the text message depicts a minor exposing their private parts for the purposes of sexual arousal in the viewer it most likely meets the requirements of obscene sexual conduct and requires reporting. In the case of the text message to a family member of a minor bathing, there is no intent to arouse sexually, so it likely would not need to be reported. In the case of a text message of a minor bathing that is sent to arouse the recipient, it would likely need to be reported. 

Therapists have no obligation to take on the role of investigator and review materials presented by parents or other third parties—they should use their clinical discretion. The legal requirement is for the therapist, while engaging in their clinical assessment and evaluation of the client, to report if they have reasonable suspicion or actual knowledge of sexual exploitation of a minor and allow the aforementioned agencies to take appropriate steps. 

The following are common scenarios involving sexting and mandatory reporting obligations that may help explain this complex topic. These scenarios share many details, but a slight variation in the facts can have a meaningful impact on whether or not a child abuse report must be made. 

Consensual Minor Sexting
A client who is 15 years old sends a nude photo of themselves to someone who is 17 years old. The minors are in a romantic relationship, and the information presented by the client appears to indicate that the sext was sent voluntarily.

By definition, sexual exploitation occurs when a person exchanges a photo of a child engaged in an act that could be considered obscene sexual conduct.12 The law does not mention consensual sexting activities between two minors as an exception. Thus, the 15-year-old client who has sent the photo has technically committed an act of sexual exploitation under CANRA and the therapist would need to report to CPS. In essence, the sexting minor is both the perpetrator and the victim. Arguably, one cannot sexually exploit oneself by voluntarily sending a sext, but the law does not currently share that opinion. Therefore, therapists presented with similar facts would need to file a CPS report. Clinicians may consider having a discussion with their minor clients at the outset of treatment to ensure that all parties understand the situations where confidential information would have to be disclosed. 

Solicitation or Coercion of Sexts from Minors
A client who is 15 years old sends a nude photo of themselves to someone who is 17 years old. The minors are in a romantic relationship, and the information presented by the client appears to indicate that they were hesitant to send the sext. After numerous requests and persistence from the 17-year-old, the 15-year-old agreed and sent the sext.

If a therapist has reasonable suspicion or actual knowledge that an individual (whether adult or minor) has requested or solicited an obscene image from a minor, regardless of age, this would require a mandatory report.¹³  The law states that sexual exploitation occurs when a person knowingly persuades, induces, or coerces a child to be photographed while engaged in obscene sexual conduct.¹⁴   Applying this law to this sexting scenario, an individual of any age soliciting or coercing a minor to send a sexually explicit photo would most likely be reportable as sexual exploitation under CANRA.

Lack of Intent
A client who is 15 years old sends a nude photo of themselves to someone who is 17 years old. The minors are not involved in a romantic relationship, and the information presented by the client appears to indicate that the sext was not requested by the 17-year-old. 

As discussed earlier, if a therapist has reasonable suspicion or knowledge that a 15-year-old client has sexted a photo of themselves engaged in sexually obscene conduct, the therapist needs to report that as sexual exploitation. However, if an individual did not solicit a sext from a minor but merely received the photo and subsequently destroyed the image, the individual who received the text would not be considered a perpetrator of sexual exploitation of a minor. The law states that sexual exploitation occurs when a person knowingly persuades or coerces a child to send a sexually explicit photo or a person knowingly downloads or exchanges a sexually explicit photo of a minor. Thus, the individual who unknowingly received the message may not need to be reported under CANRA. With all situations, facts and circumstances matter, thus the therapist should utilize best judgment, clinical experience, and knowledge/background to determine whether the situation would warrant a report.  

Distribution of Sexts Involving Minors
A client who is 15 years old sends a nude photo of themselves to their partner, who is 17 years old. The client is upset because they found out that the 17-year-old shared the minor’s nude photo with friends and/or through social media. 

Scenarios such as this often appear in the form of cyberbullying, with adolescents uploading photos of classmates and friends engaged in obscene conduct onto their social media and/ or into their group chats/text messages. Not only do these situations have potential harmful effects on the victim’s mental health, they are also a form of sexual exploitation of a minor that is illegal. Accordingly, a therapist who has reasonable suspicion or actual knowledge that this type of situation has occurred has an obligation to report under CANRA. This scenario is extremely serious, as the behavior of the 17-year-old could lead to expulsion and additional criminal charges under the category of dissemination of child pornography.¹⁵

Adult Sender to Minor Recipient
A 21-year-old sends a nude photo of themselves to a 16-year-old. In this situation, the photo is not child pornography because the individual depicted in the image is an adult. However, if the adult sent the photo with the intent to coerce or persuade a child to reciprocate with their own obscene photo then it would be considered sexual exploitation under CANRA and would require a report.¹⁶

Adult Sender to Adult Recipient
A 21-year-old sends a nude photo of themselves taken when they were an adult to a 21-year-old. In this scenario, sender and recipient are both adults (18+), meaning that the transmission on its face does not violate any CANRA statutes. The actions taken would not be deemed sexual exploitation under CANRA and no report would need to be made. 

Conclusion
The law will always play catch-up to the evolution of technology. This inevitable lag time will always require us to apply our interpretations of existing laws to problems that hadn’t been thought of when the law was enacted. Since sexting does not appear to be going away anytime soon, we hope that the law will catch up and provide additional clarification on what therapists’ and other mandated reporters’ obligations are when dealing with sexting. Until such time, CAMFT’s staff attorneys are standing by and ready to help you navigate these gray areas.

Additional resources on this topic, including Understanding Mandated Reporting Requirements AB 1775, written by Cathy Atkins, and a clinical workshop video by David Jensen, J.D., entitled “Mandated Reporting and the Sexual Exploitation of Children,” are available on the CAMFT website. 

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Luke Martin, MBA, JD, is a staff attorney at CAMFT. Luke is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes

¹ Serna, Joseph. “16-Year-Old Boy Arrested in High School ‘sexting’ Scandal.” Los Angeles Times, 16 Mar. 2019, www.latimes. com/local/lanow/la-xpm-2013-may-17-la-me-ln-sexting-sanbernardino-arrest-20130517-story.html.

² https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_ id=201520160AB2536

³ U.S. v. Broxmeyer (2d Cir. 2010) 616 F.3d 120, 123

⁴ Mathews v. Harris (2017) 7 Cal.App.5th 334, 340 [212 Cal. Rptr.3d 547, 551]

⁵ California Penal Code 11165.1 (c)

⁶ Mathews v. Harris (2017) 7 Cal.App.5th 334, 340 [212 Cal. Rptr.3d 547, 551]

⁷ Penal Code 11165.1 (c) and (d)

⁸ In re Ulysses D. (2004) 121 Cal.App.4th 1092, 1095–1096

⁹ Cal Penal Code 311

¹⁰ Id.

¹¹ Cal Penal Code 311.3 (b)(5)

¹² Penal Code 11165.1 (c)(3)

¹³ California Penal Code 11165.1 (c)(2)

¹⁴ Id.

¹⁵ California Penal Code 11165.1 (c)(1)

¹⁶ California Penal Code 11165.1 (c)(2)

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.