Vermont is considering a proposal to legalize what the media calls "sexting"--the distribution of self-produced pornographic images through cell phones by teens. A timely article in The Public Discourse by Mary Graw Leary, an associate professor in the Columbus School of Law at the Catholic University of America, the author of Self-Produced Child Pornography: The Appropriate Societal Response to Juvenile Self Exploitation,Virginia Journal of Social Policy and the Law, Vol. 15, No. 1, 2008, argues that this is a bad idea.
As is often case when a media circus produces an ill-informed backlash, Vermont's solution may worsen the problem it is designed to address. Further, Leary's remarks suggest that the practice of "sexting" could be normalized, like so many other dysfunctional activities that have been shrugged off as typical teen behavior.
"The issue of self-produced child pornography (which is defined as a minor creating a picture of him or herself which meets the definition of child pornography: i.e. engaged in sexually explicit conduct) is a complex one. The Vermont legislature seems more concerned with the secondary problem of unwise prosecutions than it is with the behavior itself. However, by neglecting the main problem, the legislation risks significant damage to the children engaged in this behavior and undermines the broader battle against child pornography."
There are three key problems with the proposed law:
"First, this legislation assumes that the children in the images are not harmed. This view ignores what the Supreme Court and the United States Congress have referenced: the unique harm of child pornography is not only the activity captured in the image, but the fact that it is memorialized out of the control of the child subject for eternity. It is the perpetuity of the victimization which is uniquely devastating to these children. One need look no further than the tragic suicide of an Ohio teen after a former boyfriend distributed a picture of her over the Internet to see the manifestation of the harm. Consistent with research in the area of non-self-produced child pornography, these children are likely to experience depression, anxiety, low self-esteem, and other effects from the fact that these images will be circulating forever.
"Second, this legislation risks creating impediments to law enforcement’s ability to investigate suspected child sexual exploitation. Before the phenomenon of self-produced child pornography, there were many images in which the children appeared to be willing subjects. However, it is not until there is an investigation into the production of a particular image that we can know the actual situation. Circumstances often include sexual assault, grooming, blackmail, bullying, domestic violence, prostitution, etc. If these self-produced images are not considered child pornography, then law enforcement may be unable to investigate them. An officer cannot obtain a search warrant if he or she does not have probable cause to do so. If the image is all the officer has to start an investigation, and this legislation is passed, in Vermont the officer may not have any evidence of a child pornography crime. The officer’s ability to obtain a search warrant may be compromised and society risks missing an opportunity, often the only opportunity, to investigate and rescue the child from continued molestation, blackmailing, or exploitation.
"Third, this legislation provides a built-in defense for the ultimate consumer of these images: the pedophile. Once these images are on the Internet they make their way to the newsgroups, peer-to-peer file-sharing networks, and email of those who use these images to validate their own sexual proclivities for children. When caught with such an image, a defendant will claim (indeed, such a defense has already been suggested) that it was “voluntarily produced” and, therefore, does not meet the definition of child pornography. For how can something not be child pornography with the first possessor, but become child pornography five consumers down the distribution chain? Ashcroft v. Free Speech Coalition has been read to hold that virtual child pornography is protected speech because it does not harm children in production. The logical extension of that argument is that self-produced images are not child pornography because the children within are not “harmed in production.” While such an assertion is, in my view, incorrect this defense claim is arguably strengthened by this proposed Vermont legislation when it excludes self-produced images from the crime of child pornography. Therefore, an adult possessor of such a self-produced image could be able to argue that he or she indeed possesses protected “speech.”
"Second, this legislation risks creating impediments to law enforcement’s ability to investigate suspected child sexual exploitation. Before the phenomenon of self-produced child pornography, there were many images in which the children appeared to be willing subjects. However, it is not until there is an investigation into the production of a particular image that we can know the actual situation. Circumstances often include sexual assault, grooming, blackmail, bullying, domestic violence, prostitution, etc. If these self-produced images are not considered child pornography, then law enforcement may be unable to investigate them. An officer cannot obtain a search warrant if he or she does not have probable cause to do so. If the image is all the officer has to start an investigation, and this legislation is passed, in Vermont the officer may not have any evidence of a child pornography crime. The officer’s ability to obtain a search warrant may be compromised and society risks missing an opportunity, often the only opportunity, to investigate and rescue the child from continued molestation, blackmailing, or exploitation.
"Third, this legislation provides a built-in defense for the ultimate consumer of these images: the pedophile. Once these images are on the Internet they make their way to the newsgroups, peer-to-peer file-sharing networks, and email of those who use these images to validate their own sexual proclivities for children. When caught with such an image, a defendant will claim (indeed, such a defense has already been suggested) that it was “voluntarily produced” and, therefore, does not meet the definition of child pornography. For how can something not be child pornography with the first possessor, but become child pornography five consumers down the distribution chain? Ashcroft v. Free Speech Coalition has been read to hold that virtual child pornography is protected speech because it does not harm children in production. The logical extension of that argument is that self-produced images are not child pornography because the children within are not “harmed in production.” While such an assertion is, in my view, incorrect this defense claim is arguably strengthened by this proposed Vermont legislation when it excludes self-produced images from the crime of child pornography. Therefore, an adult possessor of such a self-produced image could be able to argue that he or she indeed possesses protected “speech.”
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