5-13-2009 National:
In a recent column for this site (Findlaw site), I took issue with an attempt to prosecute teenagers' "sexting" – that is, the practice of sending semi-nude or nude photos of each other via cellphone – under anti-child-pornography laws. The column was prompted by a Pennsylvania D.A.'s threat to prosecute three teenage girls who had "sexted" photos of themselves, in which they were wearing only bras and no shirts, or were topless, to fellow students.
As I noted, the D.A's threat sparked a suit from the ACLU. The suit sought to counteract the "chilling effect" of the prosecutors' threat upon the exercise of these and other teens' free speech rights. The ACLU pointed out, as well, that child pornography is defined by law as depicting sexual activity, or depicting the lascivious display of the genitals -- and the girls' photos simply did not qualify.
However, child pornography laws are not the only laws that have been invoked to try to target sexting. In Ohio, earlier this year, there was also an attempt to use contributing-to-the-delinquency-of-a-minor laws against teens alleged to have engaged in sexting.
But these laws, too, are inapposite, and their application to sexting is potentially dangerous -- as I will explain. Here, too, authorities are trying to shoehorn the practice of sexting within the bounds of prior laws that are inapposite – a strategy that poses the danger of both free speech violations and unfair and disproportionate punishments for teens.
There is no shortcut here: Legislators need to write new laws – and/or schools must write new policies -- regarding sexting that are specifically geared toward the peculiarities of the practice as it exists among teenagers today. "Sexting" should not become a trap for the unwary; it should be addressed in a rational, consistent way, and in a way that eschews old categories to recognize its unique nature. Teens should also have clear prior notice of what they cannot do, and of what will happen to them if they break the rules.
"Contributing" Statutes – Already Bad In Themselves – Should Not Be Stretched and Twisted to Accommodate Sexting
In Ohio, earlier this year, two teens were charged with contributing to the delinquency of a minor after an assistant principal discovered them apparently "sexting" an explicit photo of a fifteen-year-old girl. The case was one factor inspiring Ohio state representatives to seek to redefine sexting by juveniles as a first-degree misdemeanor, partly in order to keep young culprits off sex-offender registries, yet still bring their actions within the criminal law.
There should be no question that it was wrong for Ohio prosecutors to invoke the contributing-to-the-delinquency-of-a-minor laws in this context – for a number of reasons.
First, the legislators' concern was an important one: Putting teen sexters on sex-offender registries alongside hardened criminals could haunt the teens for life, and cause them to be confused with rapists and child pornographers.
Second, such statutes are plainly intended to apply primarily, if not exclusively, to adults, and the penalties are tailored accordingly. Indeed, some such statutes are expressly limited to apply only to parents, guardians, and others in a caretaking relationship with the child, and thus are more or less limited to adults (although teen babysitters or older siblings could conceivably fall within such laws too). But Ohio's law is broader, referring simply to "persons" as well as to caretakers.
Third -- as a law school classmate of mine once argued, very persuasively -- such statutes are so vague on their face that they should be held to be invalid under the constitutional void-for-vagueness doctrine. Granted, courts have repeatedly held to the contrary, but I believe that's because this is an area where a concern for protecting children at all costs has led to a series of mistaken rulings that ignore clear constitutional principle. Such rulings may seem understandable, but they make constitutional law incoherent. Even the heinous crime of child rape must be, and is, carefully defined by law – yet "contributing" statutes, which can apply to comparatively minor transgressions, need not be? If the goal is to protect children from crime, the law seem to have it backward.
Generally, under the void-for-vagueness doctrine, criminal statutes – because of the gravity of the penalties they impose – must be quite clear about the conduct they describe. That is part of the Constitution's right to due process. But "contributing" statutes are extremely unclear – and intentionally so, for they function as a legal catch-all. When more specific criminal statutes do not apply, "contributing" statutes are used to round up the usual suspects – typically, adults who are often seen hanging out with teens, and who have not yet committed any other crime, but who seem like they might well have bad intentions or be "bad influences."
Readers may ask: So what? What's wrong with putting these apparent bad apples away before they ruin kids' lives? One answer is that like loitering statutes and the law allowing cars to be pulled over on a police officer's whim, "contributing" statutes are prone to misuse. Such statutes, by their nature, may be invoked when crime is suspected, but not proven – betraying our system's tenet of "guilt beyond a reasonable doubt." And, in this instance, the problem may not just be one of proof: The crime may not be able to be proven because, in fact, it was never committed in the first place.
Moreover, racism or other forms of discrimination may be behind the application of "contributing" statutes – with police claiming to be motivated only by a concern for teens, but really being motivated by something very different. Imagine that an African-American teen is hanging out with seventeen-year-old white kids in the suburbs. He's a friend, but police suspect he's a drug-dealer. Unable to prove the drug-dealing, they tell the African-American teen to get lost or else be charged with "contributing" under a statute like Ohio's.
For all these reasons, the last thing we need is to extend the reach of already-worrisome "contributing" criminal statutes, into the new area of sexting.
It's important to recall, too, that the blunt instrument of the criminal law is not the only weapon here. School and parental penalties still remain as options.
Teens' Consent and Their Free Speech Rights Should Not Be Left Out of the Analysis
Finally, there is a special feature of sexting that makes prosecuting minors under "contributing" statutes for sexting especially inappropriate: "Contributing" statutes don't look to the consent of the minor. That is probably because, with respect to virtually all of the conduct that the statutes' drafters envisioned as delinquent, the minor's consent is immaterial. Indeed, "contributing" laws' animating concern is that someone may be getting a minor to consent to something that he or she might not consent to do, absent the bad influence of another.
In contrast, consent should matter greatly when it comes to sexting – at least, sexting among roughly same-age students. As I discussed in my prior column on sexting, large age differences may eventually negate consent, but as with statutory-rape laws, it seems clear that a Romeo-and-Juliet sexting exception should apply at some point -- creating a safe harbor for same-age couples and consensual sexting.
It would be absurd, for instance, for two sixteen-year-olds who are dating to be deemed criminals because each sent a nude photo of him- or herself to the other, while meaning for the photo to be kept entirely private. Teenagers do have First Amendment rights – and, with the exception of obscene (and in this context, obscene-as-to-minors) speech, sexual speech is protected.
Teens' nonconsensual forwarding of other teens' photos, of course, is a much harder scenario – but media accounts of sexting still tend to focus more on teen sexuality, than on the real issue: forwarding without consent. In the absence of a large age gap, it is forwarding without consent that should be the law's primary – and often, only – concern.
And in this area, we need to start asking and answering difficult questions – questions that make a real effort to choose a rational place to put unconsented sexting on the broad continuum of moral blame and punishment, and to address it in a way that deters and punishes it, but also takes into account the youth of offenders.
The question is complicated: Unconsented sexting seems partly like bullying, to which it often leads, when the photos' subject is later humiliated in person by peers, or receives nasty phone calls or texts. But unconsented sexting also has a communal aspect, when photos are very widely forwarded among a large school community, that even group bullying rarely attains. As with file-sharing, we see "cat out of the bag" problems with sexting, and a sexted photo might go viral, reaching viewers well beyond the physical confines of a particular school.
Moreover, to look only at the bullying component of unconsented sexting would be to ignore its obvious sexual component. Sexism plays a role here too – a boy who is bullied, or who is the victim of unconsented sexting, may be told to "man up," whereas girls – like those in the Pennsylvania case – who are comfortable with their own sexuality may be told by the prosecutor, as those girls were, to take a class on "what it means to be a girl in today's society."
To complicate matters further, there seems to be no question that the current generation's sexual mores are somewhat different from those of generations past – but how, and how much? Should student councils weigh in on sexting incidents before school principals take action – including actions like referring culprits for prosecution? If they don't, there may be sexting prosecutions where no harm was done or meant.
Before we decide whether sexting should be a crime, a tort, or neither, and how to punish it, we need a better sense of why it has caused such an outcry in the first place. Is it because we don't want to acknowledge teen sexuality, because we are uncomfortable with teen speech rights, or because we are furious about teen bullying and humiliation – or perhaps all of the above? ..News Source.. by Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter. JULIE HILDEN
May 13, 2009
Why Sexting Should Not Be Prosecuted as "Contributing to the Delinquency of a Minor"
May 6, 2009
OH- Lawmakers weigh reduced penalty options for teen 'sexting' messages
5-6-2009 Ohio:
Columbus -- Teens would be prohibited from sending nude photos of themselves to others via cell phones but would face lesser potential penalties for doing so, under legislation introduced at the Ohio Statehouse.
Senate Bill 103 "brings needed balance to Ohio law to hold teenagers accountable for their actions, without having to charge them as sexual offenders, and will raise awareness for how serious and common sexting has become," said Sen. Bob Schuler (R-Southwestern Ohio).
Schuler and Republican Rep. Ron Maag have introduced companion bills in the Senate and House on the sexting issue.
Schuler offered sponsor testimony before the Senate's criminal justice committee April 29.
The phrase combines the words "sex" and "texting" and refers to potentially prurient messages and images send over electronic devices, like cellular phones or laptop computers.
The issue has gained national attention following incidents in multiple states in which teens face child pornography charges for sending nude or scantily clad images to other teens.
The proposed legislation defines sexting as activities involving individuals younger than 18 who take nude or semi-nude photos of themselves or others (with consent) and send them to other juveniles via electronic mail or cell phones.
Those who participate in such activities would face misdemeanor charges.
Under existing state law, such offenders can be charged with felonies and be required to register as sex offenders.
"I don't think [the penalties for sexting] should rise to [a felony] level," Schuler said. "What this bill is doing is providing an alternative to the prosecutors." ..News Source.. by Marc Kovac
April 28, 2009
VA- The vindication of Ting-Yi Oei, an assistant principal at Freedom High School, in South Riding, Va.,
This is a followup of an earlier report: "My Students. My Cellphone. My Ordeal."
4-28-2009 Virginia:
NPR Story: Please listen to this..
When Ting-Yi Oei, an assistant principal at Freedom High School, in South Riding, Va., tried to investigate a sexting incident at his school, he never imagined that ultimately, he would be arrested and charged with possession of child pornography. The charges were tossed out by a judge earlier this month. Ting-Yi Oei talks about his case, and how it raises a number of issues, including questions of how the law is being used to go after sexting offenses.
Official Statement: Office of the Commonwealth's Attorney..News Source.. Also important are the reader's comments at the site, a few below:
Across the country we're seeing an outbreak of this "sexting" issue. Loudoun County is not immune from this. The question is what do we do about it. I believe that the parents need to be involved in the solution. I also expect that parents expect to be informed when the schools obtain information that their student is involved in this type of behavior.
When a school official finds out about it, what should they do: open discussion, counsel them, discipline them, notify their parents....these are all options, but none were done here.
In this case, the Assistant Principal, charged with discipline of the students, found out about it and didn't inform the parents of any of the children involved. In fact, he specifically told one student not to tell his parents.
Although he claims that he didn't know the identity of the young lady in the image, the evidence strongly contradicts this. At the end of the day, the sum total of his action toward helping these children was to do nothing, exempt keep a copy of the image on his personal cell phone for weeks, even after his supervisor told him to destroy it. That's irresponsible. It also raises specific questions as to why he retained the photo for such a long time.
-Jim Plowman, Office of the Commonwealth's Attorney, Loudon County, Va.
A) District Attorneys are notorious for outrageous, ill conceived misuses of their power. There has to be a better way of selecting district attorneys and then monitoring and regulating their activities. See also US attorneys office for abuse/misuse of power to persecute/harrass.
B) I listened to the program...carefully, and read the statement by the Prosecutor, which was absolute nonsense. It sounds like another prosecutor jumping the gun trying to make a name for him or herself. I think disbarring him isn't really too harsh. Look at what he almost did to an innocent individual. One less attorney is a good thing. Texting is bad enough, putting pictures of yourself on a phone, in this preditory environment is dangerous. Teens aren't done being "cooked" yet. They need education. They need guidance. Discipline for this kind of stuff is the wrong approach. We...don't need any more "shoot from the hip" attornies. Thanks for the great programming.
C) The plight of Ting-Yi Oei and his family is the gravest tragedy of this sad ordeal. But also infuriating is the wholly irresponsible use of country resources by Mr. Plowman's office. Loudon residents should take the next opportunity to replace Mr. Plowman with a prosecutor committed to enforcing the law, not pursuing high-profile but illegitimate cases for personal gain.
D) As a representative of the Loudoun Education Association, I note that we proudly stand behind Mr. Oei. He did everything he should have done in his role as Assistant Principal. We are pleased that the judicial system summarily dismissed the unsupportable charges against him. The ongoing comments from the Commonwealth's Attorney are nothing more than an attempt to justify the improper charges he brought against Mr. Oei.
April 22, 2009
NE- Neb. seeks exception to law for teens who 'sext'
4-22-2009 Nebraska:
LINCOLN, Neb. (AP) - Nebraska lawmakers are taking care not to trap teen "sexters" in a widened net meant to catch sex offenders.
Teenagers' habit of distributing nude self-portraits electronically is often called "sexting" if it's done by cell phone. Prosecutors in many states are struggling with how to deal with it, because it falls under the category of distributing child pornography.
The Nebraska Legislature advanced a bill (LB97) Wednesday that would bar registered sex offenders from using social networking sites such as MySpace or Facebook. It would also increase penalties for some offenses.
But it would create an exception for teens who knowingly send nude pictures of themselves to another minor. ..News Source.. by KPTM News
April 7, 2009
Loretta Laroche: 'Sexting' nonsense calls for a return to scare tactics
Post by eAdvocate 4-7-2009 National:
I was blown away by the article on teenagers “sexting.” How and why do you get to the place where you think it’s OK to send nude or partially nude pictures to friends or strangers?
OK, the obvious answer is because you can, and the new technologies make it easy to do so. But what fascinates me is how more and more individuals, not just teens, seem to have less and less dignity about flaunting their body parts.
It seems that “letting it all hang out” is becoming a euphemism for the 21st century. Howard Stern became the quintessential “shock jock” by spewing four letter words and discussing topics that would have made my grandmother whip out her rosary beads and pray for his salvation.
Mr. Stern’s repartee has become commonplace, so the ante must go up from loose lips to uncovering hips. We have so many ways to be seen and heard, and Andy Warhol’s prediction that everyone wants 15 minutes of fame is coming true.
Unfortunately, it doesn’t seem to matter how that fame is achieved.
Pride or common sense seem to pale when the lure of the camera is there. What amazes me is that the individuals who expose themselves don’t seem to think twice about how they look.
When I was a teen, I don’t think I would have shown the cat my naked self. I don’t think most of my friends would have, either. Maybe the all those messages from the nuns and my mother scared the living hell out of me.
Going back to fright tactics might be a good idea. It just might stop some of the flaunting. ..News Source.. by Loretta LaRoche
March 30, 2009
Is That "Sexting" Pic Illegal? A Scientific Test
A great post from Slashdot on sexting which everyone needs to read:
3-30-2009 National:
Frequent Slashdot contributor Bennett Haselton writes "
Amid the latest 'sexting' controversy, here is a proposal for a scientifically objective method to determine whether a picture constitutes child pornography. This is a harder problem than it seems, but not for the reasons you'd think. And it raises questions about how the same scientific principles could be applied to other matters of law."
A county district attorney in Pennsylvania has threatened to file felony child pornography charges against three teenage girls for pictures that they took of themselves, even though the girls' lawyers say the pictures are clearly not sexually explicit and do not meet the legal definition of child porn. The American Civil Liberties Union has countered by asking a federal judge to block District Attorney George Skumanick from filing charges.
Skumanick won't show the pictures to anyone, including the girls' lawyers, but according to the reported descriptions, one picture shows two of the girls flashing the peace sign in their bras, and the other picture shows a girl wrapped in a towel with her breasts exposed after stepping out of the shower. Unless there's something very significant being deliberately left out of those descriptions, it sounds pretty obvious that the pictures do not meet the definition of child pornography, which requires sexual explicitness, not just nudity.
Skumanick may even sound like a buffoon for threatening to prosecute the girls over those pictures, but his overreaching is probably an example of the "context syndrome" that I referred to in writing about a Wikipedia article about a CD showing a naked underage girl on the cover. In that article, I wrote:
Suppose you read a news article about a man who was arrested for possession of child pornography, and you happened to see a sample of the images (never mind how) that he was arrested for. And suppose the Virgin Killer album cover photo had been mixed in with those images. Would it have jumped out at you as an obvious case of over-reaching by the police?
In other words, even an obviously legal photo might seem illegal when it's mixed in with a group of photos that constitute actual child porn. According to the AP, Skumanick's office first found the photos in question after confiscating students' cell phones and rounding up 20 students accused of making or distributing the images found on the phones. Some of those other photos were presumably racy enough to meet the definition of child pornography, and Skumanick probably just lumped in the bra and towel pictures into that category without thinking too much about it. Giving him credit, if someone had come to his office and shown him the picture of the towel girl by itself and asked him to prosecute the girl for creating child pornography, he might have said that it didn't meet the legal definition.
But the "context syndrome" only excuses the initial mistake, and only partly. By now, he's had time to think about those particular pictures, and he knows that non-sexually-explicit photos do not constitute child pornography, so what is he doing? He claims that the girls in their bras were posed "provocatively", but that's not the same as sexual explicitness, and he hasn't even made that claim about the towel picture, so unless there's some bombshell piece of information about the photos that he's still keeping secret (and why would he?), there's no excuse for him not to drop the threats of prosecution right away.
But could even the initial mistake have been avoided? I think it could have, if you designed a scientific procedure for deciding, objectively, whether an image meets the legal definition of "child pornography", by borrowing some of the principles used in police lineups.
Now, obviously one big difference between deciding if the right suspect has been identified in a lineup, and deciding whether an image constitutes child pornography, is that the question of a suspect's identity in a lineup is a question about objective reality, while the question of whether an image is "child pornography" is a matter of opinion and consensus about an imprecisely defined English phrase, so it may sound odd to try and find a "scientifically objective" answer. But by "objective", I mean that the procedure should eliminate the influence of factors that are not relevant to the legal definition of child pornography (for example, if asking someone to decide if they think a picture meets the definition, don't tell them whether the photo was found in a pedophile's basement or in a parent's photo album, because under the strict legal definition, that shouldn't matter). And by "scientific", I mean that the Yes/No answers returned by the procedure should be repeatable as far as possible, so that different defendants aren't being tried under wildly different standards, where Bob is convicted of possessing an innocuous photo while Alice is acquitted even though she possessed a racier one.
A naive solution, from a scientific point of view, would be to poll a random sample of lawyers or other professionals in a police go-to database, and ask them to evaluate whether the picture is child pornography, without any information about where the picture came from. These results would be objective (if the respondents didn't know the source of the picture), and would generally be repeatable, if the sample size is large enough. The problem with this method is that while all defendants would be held to the same standard, all citizens would not be. Suppose the lawyers in the go-to list start to decide, as many of them probably would, that anybody who is being prosecuted for possessing a picture of a topless underage girl is probably a pedophile creep anyway, and would start voting "child pornography" for all but the most obviously legal pictures. The prosecutor would realize this, and would know that they could threaten to ruin people's lives by charging them with possession of child pornography because of pictures found in their possession -- even while other members of society possessed similar pictures without ever being charged.
Here's where the analogy to a police lineup comes in. Police lineups are supposed to include "known innocent" candidates in order to test the credibility of the eyewitness; if the eyewitness selects a candidate who could not have possibly committed the crime (because, for example, they were in jail), then the police know the eyewitness is not reliable. (This was one guideline notoriously violated by District Attorney Mike Nifong in the Duke lacrosse team rape trial; he assembled a lineup consisting only of lacrosse team members from the party, so that whomever the eyewitness identified was guaranteed to fall under a cloud of suspicion.) In the same vein, the lawyers or other experts being consulted by the police could be shown a "lineup" of photos, consisting of several photos that were determined in advance to be legal (either because of a prior court ruling, or perhaps just because the D.A. had declined to prosecute the photos on previous occasions), along with the photo whose legality was in question. Ask the experts to pick which photo they think is closest to the definition of child pornography. Unless most of them pick the photo that's on trial, then that photo can't be said to be worse than any of the other photos that had already been deemed legal.
This is closer to a fair solution, but there's still a big loophole. When police assemble candidates for a lineup, they are supposed to pick candidates who match the general physical description given by the eyewitness. If the eyewitness said they were attacked by a redhead, the police can't fill out the lineup with one redheaded suspect that they want to railroad, and 10 blondes. Because attributes like "Caucasian" and "redhead" are pretty straightforward, if the rules for lineups are being enforced properly, the police don't have a lot of wiggle room to fill out the lineup with candidates who blatantly don't match the description. Unfortunately, it would be a lot easier to cheat when creating a "lineup" of photos to compare against a photo whose owner was on trial for possessing child pornography. If the photo at issue is probably legal but still provocative, then the police could fill out the rest of the lineup with completely non-sexual but perhaps eyebrow-raising photos, like a naked teenage girl watering some houseplants. Then when the police ask, "Which of these does not belong?", everybody would pick the provocative one, and the police would take that as "vindication".
The only way I can think of to guard against this, would be to let the defense counsel pick the other photos in the lineup, and then they could pick the most "provocative" ones that were still legal! For any photos that have been declared legal in the past, the defense ought to be able to argue that if an independent panel of experts doesn't think their client's pictures are any worse than those, then their client should not be prosecuted either. (If the defense lawyer decided their client was a child molester and wanted to throw them to the wolves, they could deliberately pick non-sexual photos for the lineup, so that their client's photo gets pegged as the odd one out -- but when the defense lawyer decides to railroad their own client, it's almost impossible for the system to guard against that anyway. Also, it's probably not a good idea to make this an option for child pornography defendants who decide to represent themselves, so that they can rifle through thousands of photographs of naked children, even legal ones, to find the pictures that they think are the "sexiest" to use for their defense.)
Perhaps someone can think of a better method that is still roughly scientific, in the sense of trying everyone according to the same standard and giving repeatable results. The irony is that despite the potential of child pornography charges to destroy a person's life, it is in possible in principle to try child pornography cases more objectively than almost any other type of crime, because you can separate out the alleged criminal act from everything else about the defendant, and let people examine the evidence of criminality in isolation. If someone shoots a person and claims it was self-defense, it's hard to imagine how you could distill out only the relevant facts of the case, and pass along just those facts to some third-party observer who then renders a judgment without knowing anything else. Half the courtroom battle is over what facts are "relevant" in the first place. But in the case of a child pornography charge, you can give the photo -- and no other information -- to an expert, and ask them to make a judgment.
I know, I know. The police and prosecutors are not actually doing to do this. But that in itself says something. Even if it's not possible to try most crimes in a truly objective fashion, why don't the courts and the police do this when it is possible? Many first-year psychology students that have an intuitive grasp of the principles of sound double-blind testing, could probably come up with a procedure better than the one I've described. When you've spent long enough thinking about how to design experiments objectively, you can't even hear about lawyers arguing over whether a photo constitutes child pornography, without the thought popping into your head: "Have a group of experts look at the photo and rate it, independently of each other. Compare the results to a 'control' result where the experts look at a photo that is not child pornography." And so on. Why don't those suggestions ever come from within the legal profession itself?
And on the flip side, what about using scientific methods to examine facts about the legal system? When considering that judges are tasked with evaluating parties' claims in an objective and fair manner, one could ask: Are they really being objective? What are different ways that we could test this? Perhaps by having two actors in different courtrooms on the same day, charged with exactly the same crime under the same circumstances, except one is black and the other is white, and repeat the experiment many times to see if they receive different average sentences. For a scientist, the idea is the most natural thing in the world. Forget the fact that the legal system doesn't do this -- why is virtually nobody in the legal profession even suggesting it?
Probably because most people who think in terms of objective experimental design are drawn towards the hard sciences, not toward law. That's probably a good thing; such people can likely do more good as physicists and research psychologists than they could as lawyers and policemen. But they can still speak out for the principles of science to be applied wherever possible, in any area where objectivity is important -- especially the law.
All true scientists at heart should keep telling the world that "science" is not just a label that encompasses nerd subjects like biology, physics, and chemistry, with other subjects like art and law being "outside the domain of science". While the statements made within the framework of those subjects are not scientific ("This painting is pretty", "The court finds the defendant not liable", etc.), science can make statements about the people in those professions and the patterns in the conclusions that they reach. If art experts are evaluating paintings differently depending on whether they think the paintings come from an art gallery or a 4-year-old's kitchen table, you could find that out through a scientific experiment. If judges are giving an easier time to lawyers than they are to parties who represent themselves, even when they make exactly identical arguments, you could test that hypothesis with an experiment, too. And scientific principles could be used to draw up procedures for trying cases more objectively, as in the procedure for deciding the legality of sexting photographs. We just need to get over the idea that "scientists" should limit themselves to the forensic CSI stuff and then stay away from the legal arena because that's a "separate domain". Science could tell us quite a lot about how fairly justice is dispensed in the courtroom, and sometimes even how to fix the problems.
February 18, 2009
Textual Misconduct
2-18-2009 National:
What to do about teens and their dumb naked photos of themselves.
Say you're a middle school principal who has just confiscated a cell phone from a 14-year-old boy, only to discover it contains a nude photo of his 13-year-old girlfriend. Do you: a) call the boy's parents in despair, b) call the girl's parents in despair, or c) call the police? More and more, the answer is d) all of the above. Which could result in criminal charges for both of your students and their eventual designation as sex offenders.
Sexting is the clever new name for the act of sending, receiving, or forwarding naked photos via your cell phone. I wasn't fully persuaded that America was facing a sexting epidemic, as opposed to a journalists-writing-about-sexting epidemic, until I saw a new survey done by the National Campaign To Prevent Teen and Unplanned Pregnancy. The survey has one teen in five reporting he or she has sent or posted naked photos of himself or herself. Whether all this reflects a new child porn epidemic or just a new iteration of the old shortsighted teen narcissism epidemic remains unclear.
Last month, three girls (ages 14 or 15) in Greensburg, Pa., were charged with disseminating child pornography for sexting their boyfriends. The boys who received the images were charged with possession. A teenager in Indiana faces felony obscenity charges for sending a picture of his genitals to female classmates. A 15-year-old girl in Ohio and a 14-year-old girl in Michigan were charged with felonies for sending along nude images of themselves to classmates. Some of these teens have pleaded guilty to lesser charges; others have not. If convicted, these young people may have to register as sex offenders, in some cases for a decade or two. Similar charges have been filed in cases in Alabama, Connecticut, Florida, New Jersey, New York, Texas, Utah, and Wisconsin.
One quick clue that the criminal justice system is probably not the best venue for addressing the sexting crisis? A survey of the charges brought in the cases reflects that—depending on the jurisdiction—prosecutors have charged the senders of smutty photos, the recipients of smutty photos, those who save the smutty photos, and the hapless forwarders of smutty photos with the same crime: child pornography. Who is the victim here and who is the perpetrator? Everybody and nobody.
There may be an argument for police intervention in cases that involve a genuine threat or cyber-bullying, such as a recent Massachusetts incident in which the picture of a naked 14-year-old girl was allegedly sent to more than 100 cell phones, or a New York case involving a group of boys who turned a nude photo of a 15-year-old girl into crude animations and PowerPoint presentations. But are such cases really the same as the cases in which tipsy teen girls send their boyfriends naughty Valentine's Day pictures?
The argument for hammering every such case seems to be that allowing nude images of yourself to go public may have serious consequences, so let's nip it in the bud by charging kids with felonies, which will assuredly have serious consequences. In the Pennsylvania case, for instance, a police captain explained that the charges were brought because "it's very dangerous. Once it's on a cell phone, that cell phone can be put on the Internet where everyone in the world can get access to that juvenile picture." The argument that we must prosecute kids as the producers and purveyors of kiddie porn because they are too dumb to understand that their seemingly innocent acts can hurt them goes beyond paternalism. Child pornography laws intended to protect children should not be used to prosecute and then label children as sex offenders.
Consider the way in which school districts have reacted to the uptick in sexting. Have they cracked down on the epidemic? Confiscated cell phones? Launched widespread Lolita dragnets? No, many now simply prohibit students from bringing cell phones to school. This doesn't stop students from sexting. It just stops them from being caught. How bad can sexting really be if schools are enacting what amounts to a don't-ask-don't-tell policy?
Parents can forget that their kids may be as tech-savvy as Bill Gates but as gullible as Bambi. At some level, teens understand that once their image reaches someone else's cell phone, what happened in Vegas is unlikely to stay there. The National Campaign To Prevent Teen and Unplanned Pregnancy survey suggests 25 percent of teen girls and 33 percent of teen boys report seeing naked images originally sent to someone else. Yet even in the age of the Internet, young people fail to appreciate that their naked pictures want to roam free.
The same survey showed that teens can be staggeringly naive in another way: Twenty percent have posted a naked photo of themselves despite the fact that 71 percent of those asked understand that doing so can have serious negative consequences. Understanding the consequences of risky behavior but engaging in it anyhow? Smells like teen spirit to me.
The real problem with criminalizing teen sexting as a form of child pornography is that the great majority of these kids are not predators and have no intention of producing or purveying kiddie porn. They think they're being brash and sexy, in the manner of brash, sexy Americans everywhere: by being undressed. And while some of the reaction to the sexting epidemic reflects legitimate concerns about children as sex objects, some highlights pernicious legal stereotypes and fallacies. A recent New York Times article about online harassment, for instance, quotes the Family Violence Prevention Fund, a nonprofit domestic violence awareness group, saying that the sending of nude pictures, even if done voluntarily, constitutes "digital dating violence." But is one in five teens truly participating in an act of violence? ..News Source.. by Dahlia Lithwick
