Teens do not want a late-night fit of anger channeled into a few seconds' worth of clicks on a cellphone to lead to anything close to what happened to Phillip Alpert, who will be in Florida's sex offender registry until he's 43, CNN reports. He told CNN he had just turned 18, he was tired, and it was the middle of the night "when he sent a naked photo of his 16-year-old girlfriend [for 2½ years], a photo she had taken and sent him, to dozens of her friends and family after an argument." Arrested and charged with distributing child pornography, he was later convicted and "sentenced to five years' probation and required by Florida law to register as a sex offender." Please see the CNN article for how US states handle child porn crimes, which - unfortunately, until US policymakers come up with a better idea - is how sexting is dealt with under US state and federal laws. What makes this complicated for law enforcement is, sexting is not always impulsive behavior by teenagers who know nothing about the law. Sometimes it's premeditated and malicious (e.g., bullying) or even criminal (blackmail or sexual abuse), in which case, Catholic U. Prof. Mary Leary and other legal scholars believe prosecution of minors should not be taken off the table (see "Self-produced child porn").
I wonder if it would it help to look at how other countries are dealing with sexting. When a Toronto TV reporter contacted ConnectSafely today, I learned that Canadian child porn law is a little easier on juveniles - more reasonable, I think, even though "sexting" has barely hit the public radar there, he told me. He pointed me to a thoughtful Macleans magazine article, reporting that, in Canada, "it’s not illegal for two teenagers under the age of 18 to carry naked photographs of one another, provided it's [consensual activity and] for private viewing only." It becomes child porn when one of them sends it around, and charges are for that distribution not against the minor who took the photo, according to Maclean. I haven't seen reports on UK law where sexting's concerned, but I noted that "90 children in the UK have been cautioned [presumably by law enforcement people] as a result of posting sexual material of themselves or their underage friends online or on their mobile phones," according to The Daily Mail, which indicates to me that those 90 children weren't arrested and that UK law enforcement may be playing the largely educational role that the realities of adolescent behavior and development demand of law enforcement where sexting's concerned. [For some research-based tips on how to deal with sexting in the US, click here.]
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If a teen sexting pictures of herself is First Amendment protected because no harm is done to a juvenile in making the picture (the classic rationale for exempting child pornography from constitutional protection as far as I know -- computer created or drawn pictures of underage children are protected, at least so far) then images mal-distributed by an angry boyfriend AFTER the child turns 18 could also meet the no child injured standard: possibly letting the Florida boy go free if his ex were 18 by at the time.
ReplyDeleteAnother possible defense angle: if no junvenile was harmed making the picture (because the juvenile made the picture) then it might require brand new legislation to make distribution illegal -- the old legislation being intended only for "harmed-child" images.
Related defense angle: if harm to the juvenile permits constitution banning of maldistribution of nude images of a juvenile, it perhaps ought not to be catagorized as a SEXUAL offense against the child. Maldistribution of nude images of an adult would not be considered an offense of a sexual nature -- equal protection.
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If the practice of teen sexting goes on long enough and becomes widespread enough the sense of violation from having images of yourself spread beyond your intended recievers may become substantially watered down just because the experience may become so commonplace.