Understanding Michigan Sexting Laws: A Complete Overview

Sexting Defined in Michigan

What is Sexting under Michigan Law?
Given the prevalence of cell phone use for both content creation and communication, many states now have specific laws regarding sexting. Sexting is most commonly interpreted as creating, sending or storing an image of a person’s private parts (clothed or unclothed) while allowing third parties to view the image. Other sexually explicit messages are also sometimes referred to as sexting.
In Michigan, the laws governing sexting can be found in both criminal and civil statutes. Under Michigan law, none of the relevant statutes use the term "sexting." However, it is generally recognized that sexting offenses can fall under either the following terms: "obscene" and "indecent." These two crime categories can cover both written and visual sexually explicit materials sent or received on cell phones, computers or other digital devices capable of storage and transmission of such content.
Obscenity
Under Michigan law, obscenity is defined in MCL 752.361. The statute makes it a felony to knowingly create, distribute, transport, exhibit or possess with intent to distribute any obscene material or performance; or to knowingly purchase, sell, rent, exhibit, display, distribute, produce, manufacture, finance, or cause to be produced, and has possession of four or more matters or performances of matter, which the actor knows is obscene or obscene under Chapter 750. Whenever a person is convicted under subsection (1), in addition to the penalty provided, the court may order the forfeiture of all obscene matter involved in the offense that is in the possession of the actor or at the actor’s business or residence at the time of the offense.
Indecent Exposure
Under Michigan law , indecent exposure is covered in MCL 750.335a It is a misdemeanor under Michigan law for a person to deliberately expose their nakedness or private parts in public or to exhibit their genitals. "Private parts" is defined under the law as the female breast below a line across the top of the areola, the genitals, and the buttocks.
Sexual Harassment
Maybe not technically sexting under Michigan law, sexual harassment by electronic transmission is still very much a real issue. The State of Michigan defines Sexual Harassment in the workplace as when an employee is subject to unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature conditioned on employment. The term also includes, but isn’t limited to, when such conduct interferes with the work performance of the individual or creates an intimidating or hostile work environment.
Criminal PENALTIES
If the obscene performance is shown before a person who is less than 18 years of age, or the person who is 18 years of age or older knows that the obscene performance will be shown before a person who is less than 18 years of age, the term of imprisonment or penalty imposed by the court shall not be reduced.
Civil PENALTIES
Any person who suffers damages as a result of a violation of this chapter may recover those damages and reasonable attorney fees in a civil action against the violator. If an offense involves 20 or more works the court shall impose a civil fine of $5,000 for each work over 20. MCL 752.363

Penalties for Sexting in Michigan

If the sexting involves minors, it also may lead to criminal charges. Whether the individual is a minor or adult, the conviction for child sexual abuse images can lead to a conviction as a misdemeanor or felony. If found guilty of child sexually abusive activity, a minor would likely be required to register on the Sexual Offender Registration Act (SORA), and if he or she is over the age of 17 years old, the criminal charge may be a felony and he or she might have to register for life. If a minor is under the age of 12, the charge may be a felony punishable by up to 15 years in prison.
The case of People v. McGhee illustrates how a conviction of this type can destroy a life. At the age of 19, by use of digital narration, McGhee engaged in a sexual conversation with another high school student. She appeared in front of a district court judge, waived her right to counsel, and entered a plea. The conviction led to McGhee being required to register as a sex offender for life under the provisions of SORA. At that time, the law stated: (1) that a minor’s crime would be considered an aggravated offense leading to registration; and (2) registration on SORA is for life. The Michigan Supreme Court later held in People v. McGhee that the principles of substantial compliance and fundamental fairness lead to the result that McGhee should not be required to register as a sexual offender for life. The Court indicated that the lower court ordered McGhee to register on the SORA in error. The Court noted that McGhee’s case at the district court level was governed by the juvenile code because McGhee was a juvenile when she committed the offense. The Supreme Court further noted that upon McGhee turning 18 years old, her case would be governed by the Code of Criminal Procedure if later filed in circuit court because such jurisdiction is concurrent. The Court also indicated that the charges against her in the case were for aggravated misdemeanor offenses. The Supreme Court ultimately concluded that "the district court lacked authority to require McGhee to register for life under SORA."

Sexting and the Impact on Minors

Michigan law is particularly rigorous in this area because it involves the protection of minors. The risk of significant emotional, social, and legal consequences is present when sexting occurs between minors.
One of the apparent aims of the law is to serve as a deterrent against child pornography. This is evident by the fact that the statutory penalties are more severe when the victim or possessor of the image is under the age of 18.
The law prohibits individuals from distributing sexually explicit images of minors in most situations. Distribution can include texting, emailing, or even posting an image online in a group or chat forum when the intent is for the image to be viewed by more than one other person. Distribution of a sexually explicit image of a minor is a felony, as are possession of more than one such image. Possession of a single image of a minor is a misdemeanor.
Enforcement of the law rests with the Child Exploitation Task Force (CETF), which was created specifically by the Michigan State Police to investigate and enforce laws governing the photographing, creating, or distribution of child pornography.
Child exploitation is a high priority for law enforcement. This was made evident when CETF officers apprehended a man in May of 2018 on 20 counts of felony child pornography. CETF officials indicated that they would continue to seek out and arrest anyone suspected of possessing, distributing, or manufacturing images of child pornography in Michigan.
The problem with sexting is that it can be easy for it to become illegal. Even if the images or videos were originally intended as private communications between two consenting people, it does not take much to turn what is legal into a felony. Only one person has to share or distribute the communication between two otherwise consenting adults for someone we might presume to be guilty of unconscionable behavior to suddenly become the victim of statutory penalties.

Various Defenses for Sexting Allegations

As with any legal allegations, there are a number of defenses that can be raised that may result in beating criminal allegations of sexting in Michigan.
One possible defense is that the act in which the person was engaged was consensual. If one or both parties invite the other to send a sexually explicit photograph, that photograph may be consensual and not made without consent. However, if the recipient then forwards the photograph to others, that could be sending an illegal sext. The law requires that the photograph be sent without consent in order for the act to be unlawful.
Another defense is misrepresentation of age, particularly when the person who received the photograph asks for it, but is unaware that the person sending the photograph, is a minor . If someone asks for a photograph and receives one from someone that they believe is an adult, but is a minor, that could be a defense against the allegation that the way in which the photograph was received was unwelcome.
There are a number of technological defenses to these allegations to consider as well. It is important for the recipient of a photograph to know whether or not their phone is encrypted, or whether someone else has access to it through a cloud backup of the phone. If the person is arrested for forwarding a photograph which is found on the phone, it could be that the photograph was not even open on the phone to begin with. If that is the case, the act which constituted sending the photograph at issue may not even be on the phone.

Preventative Strategies and Legal Counsel

It is essential that individuals take preventative measures before partaking in sexual acts, and couples should consider agreeing upon clear guidelines and limits in advance. Explicit requests or pressure to partake in a sexual act may make it easier to argue that someone did not give consent if the act is recorded and posted online or sent to others. In Michigan, there are additional actions individuals can take to protect themselves through sexting.
You should only engage in sexting with people you know well and trust. This may seem like a simple suggestion to follow, but it is surprising how many people engage in sexting with someone they do not know very well. You should never start sexting with someone who you have not met, and there should always be a period of getting to know you before the exchange. Make sure to meet in person and develop trust before engaging in any sexual exchange or discussion.
When you do engage in sexting with someone you know well and trust, ensure that you communicate about what each other’s expectations are and how you will use the materials. If possible, it is always better to have an agreement in writing to ensure that neither individual will disobey any policies. Also, when engaging over-the-phone, it is better to communicate through a secure texting app that eliminates messages after a certain amount of time, rather than regular texting.
Regardless of legal implications, it is always a good idea to not send any sexually explicit images or videos of yourself to others. Once you hit send, there is no way to know where those images or videos will go or what will happen once they leave your control. Even if you trust the other individual, there is no guarantee that they will not send them along to others. Technology is always changing, which means that things that were once thought to be deleted can resurface.

Legislative Developments and Relevant Cases

While many sexting cases can be charged under current Michigan laws related to child pornography and obscenity, the state has not been without bright spots at the appellate level. One such case, Kendra H. v. Denzel P., involved a teen who created a sexually explicit profile of his former 25-year-old teacher and started to distribute it among his high school friends. In their decision, the Michigan Court of Appeals highlighted the severe effect that an arrest and conviction would have on him, and they determined that he should not be forced to register as a sex offender, given that he had not acted with intent to harm. Another case, People v. McLain, dealt with whether sexually explicit images shared between a boyfriend and girlfriend could be considered criminal sexual conduct between the minor and her boyfriend . The Michigan Court of Appeals found that the boyfriend did not act with the depraved heart necessary to commit the crime, and as such the prosecution failed to carry their burden of proof. On the legislative side of things, Michigan passed Public Act 129 (formerly House Bill 4514) in 2014, which was designed to put policies in place to keep colleges and universities across the state from expelling or disciplining students under age 22 for non-violent sexting-related offenses. The law is based on the same idea that the Michigan Court of Appeals had in the Denzel P. case: that young people should not be penalized in ways that hurt their future for mistakes that do not have lasting effects.