UPDATE (3/16/11): Salon’s Tracy Clark-Flory writes about a new bill in New Jersey that would prevent minors who engage in “sexting” (taking naked pictures of themselves and sharing them with boy- and girlfriends) from being prosecuted as child pornographers.
Child pornography convicts are widely considered the lowliest offenders, even among criminals; only the truly depraved would indulge in such a vice. This opinion stems in large part from the innocence and vulnerability of the victims of child porn.
But what if the victims are also the defendants?
A recent Pennsylvania case is turning heads for that very reason. Six teenagers at a Greensburg, Pa., high school were facing felony charges pertaining to manufacturing, disseminating, or possessing child pornography. Three of the defendants are girls, aged 14 to 15, who took semi-nude pictures of themselves and sent them via cell phone to their male classmates.
School authorities discovered the offense when they seized a cell phone from a male student last October after he was discovered using the phone in violation of school policy. The authorities discovered a nude self-portrait taken by one of the juvenile female defendants on the phone. A subsequent investigation turned up other phones and other photographs, which led to the formal charges.
The act of sending nude pictures of one’s self electronically has become common enough to even warrant its own nickname: “sexting.”
A study conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy found that about 20 percent of teenagers have posted or sent nude pictures of themselves on their mobile phones or their computers. Yet despite the belief that sexting is common, or perhaps because of it, some prosecutors are willing to press charges:
- In Fort Wayne, Indiana, a teenage boy is facing felony obscenity charges for allegedly sending a photo of his genitals to female classmates.
- In Texas, a 13-year-old was arrested on child pornography after receiving a nude photo of a fellow student on his cell phone.
- In Ohio, a 19-year-old cheerleading coach was arrested for taking a topless picture of herself and a 15-year-old girl.
In each of the three cases listed above, there is a victim who is not the defendant: the girl who received the Indiana boy’s photos, the student who was the subject of picture found on the Texas 13-year-old’s phone, and the 15-year-old that posed with the cheerleading coach in the Ohio case. However, the Pennsylvania case seems to demonstrate a new trend toward pushing prosecutorial boundaries to include subjects of child pornography whose victimization is a result of their own doing.
Is it right to charge the victims in a child pornography case, given that the protection of such victims is one of the main purposes of child pornography statutes? For example, a Wisconsin high school student is currently facing multiple felony charges after posing as a girl on Facebook and tricking at least 31 male classmates into sending him naked pictures of themselves. Should all 31 victimized students be facing child pornography charges as well?
Defense attorneys think not. “It’s clearly overkill,” said Philadelphia criminal defense attorney Patrick Artur, in response to the charging of the Pennsylvania teens. Artur noted that the convictions may mean the teens have to register as sex offenders. Westmoreland County, Pa., Chief Public Defender Dante Bertani called the charges “horrendous.”
Even former prosecutors think these recent arrests stretch the law: “The child porn laws were really designed for a situation where an adult abuses a minor by forcing that minor…psychologically as well as physically…into taking these pictures,” said Mark Rasch, a former federal cybercrime prosecutor.
Victims, defendants, or both: Statutory analysis
Last year a 17-year-old was charged with a count of child pornography after posting derogatory commentary and naked pictures of his 16-year-old ex-girlfriend on his MySpace page. Although it is unclear how the pictures came into possession of the vengeful boyfriend, the ex-girlfriend in that case was obviously a victim. However, following the reasoning in Pennsylvania, if she had previously consented to having the pictures taken and sent to her boyfriend via the internet or cell phone, she could have been charged with child pornography.
To determine whether these prosecutions are fair, it is necessary to examine why we have child pornography laws. Are we attempting to legislate morality, or are we trying to protect underage victims? If the latter, is it wrong to protect victims from their own behavior? Proponents of charging children for these acts might argue suicide is also a crime, and is enforced primarily to protect the victim from his or her own actions. Yet the punishment for suicide is usually a brief detention in order to prevent the victim from harming himself or herself, while the punishment in child pornography cases is far more retributive, involving the potential for years in prison and registration as a sex offender.
There are several federal statutes criminalizing child pornography, and every state has enacted statutes outlawing the sexual exploitation of children. In addition, many defendants are charged with related crimes-such as obscenity, as in the Indiana case above.
Although the Pennsylvania teens were charged under state statutes, 18 U.S.C. § 2252, Certain Activities Relating to Material Involving the Sexual Exploitation of Children, is on point and important to this discussion. That statute criminalizes the conduct of knowingly transporting or shipping (including electronically) any visual depiction of a minor engaging in sexually explicit conduct. Offenders of this statute face a minimum five years in prison.
The above statute inspires the question of what is considered sexually explicit conduct? Are passive, naked pictures enough to be considered sexually explicit, or must there be some sort of sexual activity taking place? If naked pictures alone are enough, how much nudity is considered sexually explicit?
According to a Federal District Court in Pennsylvania, passive naked pictures are enough. In U.S. v. McCormick, the court held that a photograph which depicted a female simply exhibiting her pubic area depicted sexually explicit conduct for purposes of the statute.
The teens in the current Pennsylvania case reportedly took semi-nude pictures of themselves. If those shots are considered sexually explicit, there is nothing in the federal statute that would have precluded a federal charge, and the statutory minimum of five years’ imprisonment. (The defendants, however, were charged under state laws, not federal laws.) Surely, following case law, those shots would be considered sexually explicit: According to Greensburg Police Capt. George Seranko, the pictures “weren’t just breasts; they showed female anatomy.”
The United States Department of Justice created the Child Exploitation and Obscenity Section, which is devoted to combating child pornography. According to the USDOJ, aggressive enforcement led to the near-eradication of child pornography. However, the emergence of the internet and cell phones have provided easy access to offenders, resulting in a new proliferation of the crime. According to the USDOJ website, the CEOS works with law enforcement agencies “with the goal of rescuing the victims and preventing continued abuse of these children.”
But are they abused victims when they’re the perpetrators? Perhaps criminal charges are appropriate in many of these cases: once the information is sent electronically, it may be distributed and downloaded anywhere in the world. What may have originally been intended as an intimate email could result in the objectification of young women or men before a global audience. In that way, the defendant is made victim by his or her own act of taking and distributing the pictures.
For now, prosecutors seem more interested in decrying the behavior than pursuing retribution. Newark, Ohio authorities recently filed and then dropped child pornography charges against a 15-year-old after she sent photos of herself to her classmates over her cell phone. In return for the charges being dropped, the girl agreed to a curfew, no cell phone use, and no unsupervised internet use for several months.
Seranko said the Greensburg, Pa., students were charged specifically to send a strong message to other students contemplating sexting. To date, five of the six students charged have accepted plea deals that reduce their sentences to lesser misdemeanor charges, though the mother of one of the boys charged with possession of child pornography is considering fighting all charges.
“Hopefully we’ll get the message out to these kids,” an Allen County, Indiana prosecutor said in response to the Fort Wayne teen’s arrest. “We don’t want to throw these kids in jail, but we want them to think.”