South Dakota Sexting Laws: Legal Consequences and Penalties

South Dakota treats minor-to-minor sexting as a misdemeanor under SDCL 26-10-33, a dedicated juvenile sexting statute enacted in 2012 (SL 2012, ch 148) to keep teens out of the felony child-pornography chapter, SDCL 22-24A. Those felony offenses are now codified at SDCL 22-24A-35 (possession), 22-24A-36 (distribution), and 22-24A-37 (manufacturing), which replaced the earlier provisions in a 2024 recodification (SL 2024, ch 87). Adults who send or receive explicit images of minors are still prosecuted under that felony chapter.

South Dakota Teen Sexting Law (§ 26-10-33)

South Dakota enacted specific legislation to handle cases of minors sending explicit images to other minors. Found in SDCL 26-10-33, this law prohibits "juvenile sexting." Before this law was passed, any minor involved in sexting could technically be charged with the production, possession, or distribution of child pornography,a felony offense carrying mandatory sex offender registration.

The statute makes it illegal for a minor (person under 18) to intentionally:

• Create, produce, distribute, present, transmit, post, exchange, or disseminate any visual depiction of a minor engaging in sexually explicit conduct or in a state of nudity.
• Possess such material on a computer, phone, or digital device.

This law was designed to prevent teenagers from being labeled as sex offenders or felons for what is often considered impulsive adolescent behavior, providing a "step down" from the state's harsh child pornography statutes. It acknowledges that while the behavior is illegal and harmful, it does not always warrant the life-altering stigma of a felony record.

What Counts as "Prohibited Sexual Act"?

The definition of prohibited content is broad. Under SDCL 22-24A-2, prohibited sexual acts include:

• Sexual intercourse (actual or simulated)
• Masturbation
• Sado-masochistic abuse
• Lewd exhibition of the genitals or pubic area

This means that even a "nude selfie" (displaying genitals or female breasts) can trigger these laws if it meets the definition of sexually explicit conduct or nudity under the statute. The law does not require the image to be "pornographic" in a commercial sense; a simple bathroom mirror selfie sent to a boyfriend or girlfriend falls under this definition.

Penalties for Teen Sexting

The primary benefit of the juvenile sexting statute is that it categorizes the offense as a misdemeanor rather than a felony. SDCL 26-10-33 sets a single penalty class: "Any violation of this section constitutes the offense of juvenile sexting, which is a Class 1 misdemeanor." There is no lesser grade for possession and no higher grade for distribution.

Those are the adult-court maximums for a Class 1 misdemeanor. In the juvenile justice system, the focus is distinct from adult court, and a minor adjudicated delinquent is far more likely to receive a disposition built around supervision and counseling than the statutory maximum.

Diversion and Rehabilitation

In many juvenile cases, courts prefer diversion programs over standard sentencing. A judge or juvenile probation officer might order:

• Counseling: Mandatory therapy to address decision-making and digital safety.
• Community Service: Hours spent working for a non-profit or community organization.
• Educational Programs: Classes specifically designed to teach teens about the dangers of sexting and digital footprints.
• Probation: A period of supervision where the minor must follow strict rules (curfew, device monitoring) to avoid further penalties.

If a minor successfully completes a diversion program, the charges might be dismissed, keeping their record clean. This is the ideal outcome for a first-time offense involving consensual peer-to-peer sexting.

Defenses to Juvenile Sexting

South Dakota law provides two, and only two, affirmative defenses to juvenile sexting, both set out in SDCL 26-10-34. Neither one turns on the ages of the minors involved or on whether they were dating. Both turn on the same thing: whether the minor passed the image along.

Unsolicited Receipt

A major concern for teens is "airdropping" or receiving unwanted images. The first statutory defense applies where the minor did not solicit the visual depiction, does not subsequently distribute, present, transmit, post, print, disseminate, or exchange it, and deletes or destroys it within a reasonable time after receipt. All three elements are required.

• Did not solicit or request the image.
• Did not redistribute or share the image with anyone else.
• Deleted or destroyed the image within a reasonable time after receiving it.

Crucial Warning: If a teen receives an unsolicited image and then forwards it to a friend with a caption like "Gross, look at this," they lose this defense. Redistribution is a separate act that can lead to charges.

A Self-Created Image the Minor Never Shared

The second statutory defense covers the most common fact pattern of all: a teen who photographs only themselves. It applies where the visual depiction is of a single minor, created by that minor, who does not subsequently distribute, present, transmit, post, print, disseminate, or exchange it.

Two limits matter here. The defense covers a depiction of a single minor, so an image with more than one person in it falls outside it. And it is lost the moment the minor sends the image to anyone, which means the teen who takes a selfie and texts it to a boyfriend or girlfriend has already stepped outside this defense.

Read that alongside SDCL 26-10-35, which states that it is not a defense that the visual depiction is of the person charged. Being the person in the photo is not, by itself, a defense in South Dakota. The narrow safe harbor in SDCL 26-10-34 is what protects a self-created image, and only for as long as the minor keeps it to themselves.

Note: There is no "Romeo and Juliet" or consensual dating-relationship defense to juvenile sexting in South Dakota. Neither SDCL 26-10-33, 26-10-34, nor 26-10-35 mentions a dating relationship or an age-gap allowance. A teen who shared an image inside a relationship should not assume the relationship itself is a defense.

Child Pornography Laws (§ 22-24A)

When the juvenile sexting statute does not apply,such as in cases involving adults, coercion, commercial gain, or widespread malicious distribution,prosecutors utilize South Dakota's strict child pornography laws found in Chapter 22-24A.

Possession of Child Pornography

Under SDCL 22-24A-35, which replaced the former § 22-24A-3 in a 2024 recodification (SL 2024, ch 87), knowingly possessing visual depictions of a minor engaging in prohibited sexual acts, or computer-generated child pornography, is a Class 4 Felony.

• Penalty: Up to 10 years in state prison and a fine of up to $20,000, with a mandatory minimum sentence of at least 1 year for a first conviction and at least 5 years for a subsequent conviction.
• Sex Offender Registration: A conviction typically requires mandatory registration as a sex offender, often for life.

Distribution or Manufacture

Manufacturing, distributing, or selling such material is a more serious offense. This includes taking the photo (manufacture, SDCL 22-24A-37) or hitting "send" (distribution, SDCL 22-24A-36).

• Distribution (SDCL 22-24A-36), Class 3 Felony: Up to 15 years in prison and a $30,000 fine, with a mandatory minimum of at least 5 years for a first conviction and at least 10 years for a subsequent conviction.
• Manufacturing (SDCL 22-24A-37), Class 2 Felony: Up to 25 years in prison and a $50,000 fine, with a mandatory minimum of at least 10 years for a first conviction and at least 20 years for a subsequent conviction.

Aggravating Factors

Penalties can be enhanced if:

• The victim is under a certain age (e.g., under 13).
• The offender is an adult in a position of authority.
• The material involves violence or sado-masochistic abuse.

Federal Sexting Laws

While state laws handle most local sexting cases, federal law can apply, especially if images are sent across state lines (interstate commerce). Federal child pornography laws are extremely severe.

18 U.S. Code § 2252A

Federal law prohibits the production, distribution, receipt, or possession of child pornography. Penalties are harsh:

• Distribution/Receipt: Mandatory minimum of 5 years in federal prison, up to 20 years.
• Possession: Up to 10 years in federal prison (or up to 20 years with prior convictions).

Federal prosecutors typically do not get involved in minor-to-minor sexting cases unless they are part of a larger investigation or involve particularly egregious conduct. However, the possibility exists, making the legal stakes incredibly high.

Adults Sexting With Minors

Adults (18+) who exchange explicit images with minors cannot use the "juvenile sexting" defenses available to teenagers. The law views this as predatory behavior, regardless of the minor's willingness.

• Solicitation of a Minor: Using the internet, apps, or text messages to solicit a minor for sexual activity is a felony offense.
• Contributing to Delinquency: Can be charged as a Class 1 misdemeanor for encouraging a minor to engage in illegal acts (like producing pornography).
• Child Pornography: As noted above, receiving an image from a minor constitutes possession of child pornography, a Class 4 Felony. Creating the image (even by directing the minor to take it) counts as production/manufacture.

Strict Liability: South Dakota law generally applies "strict liability" regarding the age of the victim in these cases. Claiming "I didn't know she was 16" is rarely a valid defense if the victim was in fact a minor. A minor cannot legally consent to the creation or distribution of pornography.

Revenge Porn and Privacy Laws

Revenge porn, the non-consensual distribution of intimate images that were originally taken with consent, is a growing legal issue. South Dakota's closest statute is its invasion of privacy law, SDCL 22-21-4, which criminalizes non-consensual recording and the dissemination of such a recording. How far it reaches a consensually created image is a genuinely open question, discussed below.

Invasion of Privacy and Nonconsensual Dissemination (§ 22-21-4)

SDCL 22-21-4 opens with a single condition that governs everything under it. It applies to an individual acting "without the consent or knowledge of the individual depicted or recorded," and with intent to self-gratify or to alarm, annoy, embarrass, harass, invade the privacy of, threaten, or harm that individual. On that footing, it is a Class 1 misdemeanor (a Class 6 felony if the victim is 17 or younger and the offender is at least 21 when the recording is made) to:

• Intentionally photograph or visually record the individual without clothing, under or through the clothing, or with a third individual in a sexual act, for the purpose of viewing the person's body or undergarments; or
• Intentionally disclose, disseminate, distribute, sell, or use "any recording or photograph described in subdivision (1)."

Read that second bullet carefully, because it is the whole question for a revenge porn victim. The dissemination offense is tied back by its own words to a recording "described in subdivision (1)," and subdivision (1) describes a recording made without the depicted person's consent or knowledge. Whether an image the victim took themselves, or consented to at the time, counts as a photograph "described in subdivision (1)" once it is shared without consent is a contestable reading that we have not found a South Dakota appellate decision settling. Anyone relying on this statute for a classic revenge porn fact pattern should treat the coverage as unresolved and talk to a prosecutor or attorney rather than assume it applies.

Notably, the deepfake provision discussed below is drafted as a freestanding prohibition rather than a cross-reference, which is consistent with subdivision (2) being tied to subdivision (1). Prosecutors may also use, as additional or alternative charges:

• Harassment Laws: If the sharing is intended to harass, annoy, or alarm the victim (SDCL 22-19A). Stalking laws may also apply if there is a pattern of conduct.
• Disorderly Conduct: In some cases, public dissemination could be argued as disorderly conduct, though this is a stretch.

AI and Deepfakes

South Dakota has already acted on this. SL 2026, ch 104, § 1 amended SDCL 22-21-4 to make it a crime to knowingly create, disclose, disseminate, distribute, or sell a digitally fabricated or manipulated ("deepfake") intimate image of an identifiable person without consent. This deepfake-specific subdivision is a Class 5 felony, punishable by up to 5 years in state prison and a fine of up to $10,000, regardless of the victim's age. That is a more serious penalty than the Class 1 misdemeanor (Class 6 felony for a minor victim) that applies to the statute's separate real-image recording and dissemination subdivisions.

The Juvenile Court Process

Understanding how the juvenile justice system works in South Dakota can help demystify the process for parents and teens facing charges.

1. Investigation and Petition

Police investigate the report. If they find evidence of a crime, they forward the case to the State's Attorney. The prosecutor then decides whether to file a "petition" alleging the child is a "delinquent child" or a "child in need of supervision" (CHINS).

2. Intake and Detention Hearing

A court services officer assesses the child. If the child is detained (arrested), a hearing must be held within 48 hours to determine if they should be released to parents or kept in juvenile detention.

3. Adjudicatory Hearing

This is the juvenile equivalent of a trial. The judge hears evidence and determines if the allegations in the petition are true. There are no juries in juvenile court.

4. Dispositional Hearing

If the judge finds the child delinquent, a dispositional hearing is held to decide the penalty (sentencing). This is where diversion, probation, or counseling is ordered. The judge considers the child's age, history, and the severity of the offense.

5. Sealing Records

Juvenile records are generally confidential. However, they are not automatically destroyed. A petition to seal or expunge records may be necessary after the child turns 18 and completes their sentence.

School Consequences

Sexting incidents often occur between classmates or on school grounds, leading to school disciplinary actions that run parallel to legal proceedings.

• Suspension or Expulsion: Schools have "zero tolerance" policies for sexual harassment or disruption. Sharing explicit images often qualifies as both.
• Extracurricular Ban: Student codes of conduct for athletes and club members usually prohibit illegal or "unbecoming" conduct. A sexting charge can result in removal from sports teams, band, or student government.
• Mandatory Reporting: School administrators, teachers, and counselors are mandatory reporters. If they see or hear about explicit images of a minor, they are legally required to report it to law enforcement or Child Protective Services. They cannot just "handle it internally."

Parental Liability

Can parents be held responsible for their child's sexting? Generally, parents are not criminally liable for their child's actions unless they contributed to them (e.g., encouraged the behavior). However, civil liability is a different matter.

Civil Lawsuits: Parents can be sued in civil court for the actions of their minor children. If a teen distributes revenge porn that causes significant emotional distress or reputational damage to a victim, the victim's family could sue the offender's parents for damages (money).

Negligent Supervision: If parents knew their child had a history of such behavior and failed to take reasonable steps to prevent it (like monitoring phone use), they could theoretically be liable for negligent supervision.

Civil Liability

Beyond criminal charges, sexting can lead to lawsuits. Victims of non-consensual pornography (revenge porn) or invasion of privacy can sue for:

• Intentional Infliction of Emotional Distress (IIED): Proving the conduct was extreme and outrageous and caused severe emotional suffering.
• Invasion of Privacy: Public disclosure of private facts.
• Defamation: If false statements accompanied the images.

Civil judgments can result in significant financial penalties, requiring the offender (or their parents) to pay for the victim's therapy, reputational damage, and pain and suffering.

Long-Term Impact

Even a misdemeanor conviction for sexting can have lasting consequences that extend far beyond the courtroom:

• Criminal Record: A conviction stays on your record. While juvenile records are sealed, they can sometimes be accessed by law enforcement or military recruiters.
• College Admissions: Many colleges ask about criminal history or school disciplinary records. A suspension for "sexual misconduct" looks very bad on an application.
• Employment: Background checks are standard for many jobs. A record involving "sexual exploitation" or "indecent exposure" can bar employment in education, healthcare, childcare, and government sectors.
• Digital Footprint: Images shared online are nearly impossible to completely remove. They can resurface years later, affecting career prospects and personal relationships.
• Social Stigma: Being labeled "the kid who sent that photo" can lead to bullying, isolation, and mental health struggles.

More South Dakota Laws

• South Dakota Age of Consent Laws
• South Dakota Deepfake Laws
• South Dakota Expungement Laws

Frequently Asked Questions

Is sexting a felony in South Dakota?

For minors charged under the specific juvenile sexting statute (§ 26-10-33), it is a Class 1 misdemeanor. The statute sets that single class for any violation, so the offense is not graded up or down based on whether the minor distributed the image or only possessed it. However, for adults, or for minors in aggravated cases (like coercion), it can be charged as felony child pornography (Class 4 Felony or higher), which is much more serious.

Can I be charged if I only received the photo?

Technically, possession is a crime. However, the law generally provides a defense for minors who receive unsolicited images and do not redistribute them. If you keep it, show it to others, or save it to a hidden folder, you risk prosecution. The best action is to delete it immediately.

Does South Dakota have a "Romeo and Juliet" law for sexting?

No. SDCL 26-10-34 provides two affirmative defenses to juvenile sexting, and neither one depends on a dating relationship or on the age gap between the minors. The first covers a minor who did not solicit the image, did not pass it on, and deleted or destroyed it within a reasonable time after receiving it. The second covers a depiction of a single minor, created by that minor, who does not subsequently distribute, present, transmit, post, print, disseminate, or exchange it. Nothing in SDCL 26-10-33, 26-10-34 or 26-10-35 mentions a consensual dating relationship or an age-proximity allowance, so a teen should not assume the relationship itself is a defense.

Do I have to register as a sex offender?

Convictions under the specific juvenile sexting statute (§ 26-10-33) generally do not require sex offender registration. This is one of the main reasons the law was passed. However, a conviction for felony child pornography (§ 22-24A) mandates registration, often for life.

What if the image is a "deepfake" or AI-generated?

South Dakota has already enacted a deepfake law. SL 2026, ch 104 amended SDCL 22-21-4 to make it a crime to knowingly create, disclose, disseminate, distribute, or sell a digitally fabricated or manipulated intimate image of an identifiable person without their consent, regardless of the victim's age. That offense is a Class 5 felony, punishable by up to 5 years in prison and a fine of up to $10,000. If the image involves an actual minor rather than a fabricated depiction, prosecutors can instead use the state's child pornography statutes, including its computer-generated child pornography provisions.

Can school take my phone?

Yes, if school officials have "reasonable suspicion" that your phone contains evidence of a violation of school rules or the law, they can search it. In many cases, they will then turn the phone over to police, who can perform a more forensic search.

How long do I have to wait to expunge my record?

If you are adjudicated as a juvenile delinquent, you generally have to wait until you are at least 18 (or 21 in some cases) and have had no further offenses for a set period. You should consult an attorney to file the necessary petition for expungement.

What should you do if you or your child is accused of sexting?

Consult an Attorney: Contact a criminal defense lawyer specializing in juvenile law immediately. Do not try to handle this alone. Preserve Evidence: Keep texts, logs, or screenshots that show the context that matters to the statutory defenses, such as that the image was unsolicited, that it was deleted promptly, and that it was never forwarded to anyone. Hand these over to your lawyer, not the police. Stay Silent: Do not discuss the incident with police, school officials, or friends without a lawyer present. Anything you say can be used against you. Cooperate with Counsel: Be honest with your lawyer about exactly what happened, who saw the images, and where they might be stored.