Even with all of the recent publicity and attention paid to sexting and how serious the penalties for it may be, Garden State teens and pre-teens continue to send each other naked photos on their cell phones.

Sexting is the act of sending or receiving nude or explicitly sexual images or videos through any type of electronic device.

Because sexting has been so prevalent with kids in high school and middle school, a sexting law for minors was passed unanimously a couple of years ago. It calls for minimal punishment and court-mandated therapy for first-time offenders.

But prosecutors can still charge offenders with child pornography in some instances, even if they’re only 13 years old.

Under state law, it is illegal to possess, receive, distribute, view or share a photo or allow a minor to engage in child porn.

“The one who sends the picture could be charged with creating and distributing child pornography, and the one who receives the picture could be charged with possession of child pornography,” said anti-sexting advocate Ally Pereira, who talks to students across New Jersey and the nation.

Criminal defense attorney and former Morris County prosecutor Bob Bianchi said in some parts of Jersey sexting charges would not be filed, but in another “they’ll throw the book at you."

"There’s 21 different county prosecutor’s offices, there’s 21 different prosecutors — each prosecutor has a different temperament and mindset," he said.

He said that while a minor can technically be charged with child porn, “I always thought that was overkill. These are just kids. They’re really not mature at this point in time.”

He noted juvenile records are sealed by the court when someone turns 18 but they can be unsealed if someone applies to be a police officer or certain licensed professions.

Pereira said individuals charged with child porn may be required to register as sex offenders under Megan’s Law.

“With that comes the ramifications of not being able to live or set foot within certain areas, playgrounds, schools or churches, not being able to cross state lines without permission.”

And your photo and address could be posted online as part of a sex offender database.

She also noted if a sexting photo is sent to other kids, every child who gets the photo on their phone can be potentially charged with possession of child porn.

In some cases sexting cases can also involve the sender or distributor being charged with lewd behavior or sexual harassment.

Bianchi said if a minor does face a child porn charge, he or she would almost never be sentenced to a juvenile detention facility because the focus is on rehabilitation, not punishment.

He also noted in cases where someone is 18 years old and is involved with someone who is 16 or 17, sexting can become a much more serious crime, where federal child porn charges can be filed with the potential of long prison terms.

Pereira said sexting continues to take place because “teenagers are impulsive, they don’t think about the repercussions or the consequences of what could happen.”

To stop kids from sexting, she believes “the answer is just education."

You can contact reporter David Matthau at David.Matthau@townsquaremedia.com

More From New Jersey 101.5 FM