March 30, 2009

The Problem Of Sexting

The advent of the camera phone has made it easier than ever for folks to pass around pictures. I've done it during the rebuilding of my house, sending photos of cabinets, a shower, and other design features to my contractor. Unfortunately, though, some folks have taken to sending nude or otherwise erotic photos of themselves over a cell phone -- and once that is done, they can be passed just about anywhere.

This is an especially troublesome development when kids are sending such pictures of themselves. Take this case here.

One summer night in 2007, a pair of 13-year-old northeastern Pennsylvania girls decided to strip down to their skivvies to beat the heat. As Marissa Miller talked on the phone and Grace Kelly flashed a peace sign, a third girl took a candid shot of the teens in their white bras.

It was harmless, innocent fun, the teens say.

But the picture somehow wound up on classmates' cell phones, and a prosecutor has threatened to charge Miller and Kelly with child pornography or open lewdness unless they participate in a five-week after-school program followed by probation.

On Wednesday, the American Civil Liberties Union asked a federal judge to block Wyoming County District Attorney George Skumanick Jr. from filing charges, saying that the teens didn't consent to having the picture distributed, and that in any event the image is not pornography.

Now this case, and others like it, raises all sorts of perplexing questions that go beyond whether or not a particular photo in a particular case constitutes child pornography. In an attempt to protect kids, even photos with no nudity can be defined as kiddie porn if they are too revealing and sexual in nature -- and if I understand the law correctly, even pictures that are computer generated and do not involve actual children being exploited can qualify.

Here are a couple of the issues I see.

1) Should sexting by minors be illegal? Should the production of these photos be treated as producing and distributing child pornography? Should there be a penalty for receiving such photos and keeping them? How about redistributing them? Should minors involved in any of these aspects of sexting be treated as sex offenders and subject to temporary or permanent registration as such?

2) Let us assume that we are not going to treat these situations as sex offenses. Is the taking of such pictures of oneself a victimless crime that should be ignored by the law? Do we treat the receipt of such images the same way? How about the redistribution of the photos? How ought issues of age of consent (and the legal inability to consent) enter into this?

3) Assuming that the taking of such pictures of oneself is not going to be treated as a crime because of the lack of a victim, what is the status of such pictures under the law? Are they legally contraband if in the hands of another person? Would it be legally acceptable for the person who took such pictures of herself/himself to later distribute them once she/he has reached adulthood -- again basing this on the view that an one cannot sexually exploit oneself? What does this do to the entire argument for criminalizing kiddie porn?

I'm going to be honest -- I don't have the answers to these questions. It seems a bit much to treat a stupid action by teens as a sexual offense, but we already do that when we classify teens engaged in consensual sexual activity with another teen as sex offenders. It also strikes me as unwise to allow any sort of "acceptable distribution" of such self-produced images of kids -- after all, how does one distinguish such photos from illegal child pornography? And as for my last scenario, that constitutes a real nightmare for me.

Unfortunately, these issues are not entirely hypothetical in my mind. Some studies have shown that one out of every four teens have engaged in sexting. That means I have 25-30 kids in my classes each day who have such pictures of themselves potentially being distributed among a tight circle of trusted friends -- or perhaps even more widely if their trust was misplaced. I won't even begin to speculate how many of my students have received such pictures of friends or acquaintances. I want to see society discourage such activities -- even ban them under the law -- but I don't think that putting these kids in the same category as rapists and child molesters is the right answer. I also know that I don't have all -- or even most -- of the right answers. But it seems to me that we need to start talking now.

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