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October 7, 2009

Pennsylvania town struggling with a "rash of sexting incidents"

Local stories here and here and here report that, in the Pennsylvania town of Chambersburg, "Borough Police and school officials facing a rash of 'sexting' incidents called a news conference Tuesday to share information about how parents can protect their children’s welfare."  The last of these local pieces provides this effective review of the challenging criminal justice issues raised by this disturbing rash:

Bret Beynon, Franklin County assistant district attorney who specializes in juvenile prosecution, said the only charges that would be applicable could be felony possession of child pornography, which could come with the classification of sex offender if found guilty. She said if the students involved were juveniles, the sentences would not have a minimum or maximum sentence if charges were filed and the students were found guilty.

However, they would remain on their public record for life and they would have to submit DNA to the Pennsylvania State Police database. "It would affect them for the rest of their lives," Beynon said.

Anyone older than 18 who was charged with the felony would have to register with the state's Megan's Law Web site for 10 years under current laws. Megan's Law alerts the public to the living and working arrangements of registered sex offenders.

Since the possible charge would be possession of child pornography, everyone involved could face the same charge whether they took the photograph, received it, or forwarded it. Beynon said a student who received a picture, immediately deleted it and notified authorities would not face charges. However, someone who received a photo and either saved or forwarded it to others could. "Everybody could be on the hook for a felony," Beynon said.

Some related "sexting" posts:

October 7, 2009 at 09:37 AM | Permalink

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Comments

i read your blog,but my thinking is this that we as human beings,most of us cannot resist whenever we see a sexually explicit pic,i am not saying about me dont take me wrong but still,i myself am a student,so as a student's perspective we look out for porn,and ya i do admit that child pornography is a serious crime afterall,but it's simple human nature afterall,what beynon is saying is good ,but a little change needs to be done,the person who is making porn should be punishmed and the students who are receieving it,watching it ,it shouldn't be that harsh for them,as i said earlier we all are human beings afterall,dont take me wrong but that's the truth

Posted by: aditya(student) | Oct 7, 2009 10:48:48 AM

aditya, The problem in this case is that the "producer" of the "child porn" is a teenager exploring their sexuality, whether in a proper way or not. The problem is that the criminal law in these cases does not make the distinction between this kind of teen sex prank and an adult who is producing child porn by exploiting a minor. The law treats them the same even though any reasonable person can clearly see that the conduct does not deserve the same punishment, or pose the same threat to others.
The sex offender registration laws are supposedly out there to help monitor people who are a danger to commit further sex crimes. On the facts of these cases it is ridiculous to say that these kids are a danger to to do anything of the kind.

Posted by: KRG def attny | Oct 7, 2009 12:11:17 PM

KRG- I agree it is ridiculous. Having just graduated from law school, I remember learning something about how certain criminal laws do not apply to the class they are intended to protect. Obviously child porn laws are created to protect children from exploitation and abuse. I think the solution here is not criminal prosecution but an educational campaign. Sure, prosecution can be "educational" to some degree, but at the expense of someone's future?

Posted by: Shawn | Oct 7, 2009 12:49:52 PM

The problem with all you well meaning dodas is that you understand nothing about how child porn is actually produced. In most cases the child is a "willing" participant. And if you make a loophole for cute middle class white kids who are "exploring their sexuality" you can be 100% sure there will be child porn producers who will drive a semi truck through your saintly little loophole.

As a practical matter the difference between a child exploring their sexuality and child exploitation is exactly zero.

Posted by: Daniel | Oct 7, 2009 7:38:42 PM

What is a doda?

Daniel, I'm not sure what point you're trying to make here, and I'm curious because you posted this rather contrarian view on the sexting issue before.

As a practical matter, the difference between teens (and not a "child" as you originally state) exploring their sexuality and child exploitation seem abundantly clear. One involves consenting teenagers acting on their own volition to take pictures of each other, and possibly to distribute to some of their friends, for shits and giggles. The other usually involves much younger children, often in a position of no consent, in terms of both maturity and in terms of actual choice, being raped on film by older adults, for the purpose of distribution en massse among other older adults, for masturbation purposes.

I fail to see what loophole can be exploited. One solution is a call for greater prosecutorial discretion which can recognize the distinction I outlined above. The other way would be to craft legislation that recognizes the distinction, similar to the way state "Romeo and Juliet" laws make exceptions for teenagers have sex with each other, as opposed to a much older adult a teen having sex.

Posted by: Buffalo Bill | Oct 7, 2009 9:02:45 PM

The last sentence was poorly written, I meant "The other way would be to craft legislation that recognizes the distinction, similar to the way state 'Romeo and Juliet' laws make exceptions for teenagers having sex with each other, as opposed to a much older adult and a teen having sex."

Posted by: Buffalo Bill | Oct 7, 2009 9:05:46 PM

BB. It sounds to me like you are asking for the age of consent to be changed? The federal definition of child porn is anything under age 18, and that includes teens. Teens are children under the law. So while there may be an "abundantly clear" distinction in your own mind, that's not a distinction federal law recognizes.

The biggest flaw in your position is that you seem to believe that it's easy for anyone to apprehend the true purposes for which a picture of a child was made. Sometimes, of course, it's obvious in the case of an older adult having sexual relations with a pre-teen. But child porn encompasses much more. It includes children having sex with each other, children having sex with animals, and just plain old naked pictures of children. When one make the definition of child porn turn on the subjective reasons it was made one enter an impossible thicket from which no sane person can extract themselves. Again, there are obvious exceptions such as medical science. But in general it's impossible to ascertain why a particular picture was made.

Legalizing sex-texting is a child pornographers wet dream, pardon the pun. These adults are experts at manipulating children and have no problem lying, beating, and bribing children to get what they want. If all that it requires is for two 14 year old kids to go to the police station and say they filmed sex with each other for "shits and giggles" you have just given child pornographers carte blanche. Heck, the pros can get kids to do that for a soda and a ticket to the movies.

Worse, if these pictures or movies made by teens for "shits and giggles" find their way onto computer hard drives around the country the law is further twisted. Now we have a picture which was not child porn when it was produced but magically becomes child porn when it becomes possessed by a third party. That's sheer nonesense. The teens will claim they made the pics for larks and the pervs will claim that possess it for its artistic merit.

Congress saw through all of this bullshit. One of the great strengths of the current law is that, with a few well defined exceptions, it considers the subjective reasons why a picture of a child was made to be irrelevant. The decision to create an objective standard for child porn was a well considered and well reasoned decision by Congress. Their overall goal was to reduce both the supply and demand for child pornography. Leaving decisions about what constituted child pornography to prosecutor discretion would not only create great inequalities in the application of the law, it would more fundamentally subvert the clear intent of Congress to reduce the production by all legal means.

Posted by: Daniel | Oct 7, 2009 10:28:12 PM

Daniel,

My sentiments exactly on the problem of intent--the law on its face should not make such a distinction because it is impossible to apply in practice.

That being said, would you also agree that there are times where the facts are truly obvious, such that a prosecutor should, in his discretion, decline to prosecute? For example, a situation where the minor could prove that s/he acted solely upon his/her volition? It seems to me that the purpose of the law was to stop exploitation of minors, and the reason why Congress declined to create a subjectivity component was because you could practically drive a Mack truck through a subjective-intent loophole on the production end. But here, at least on the facts we have, there is no indication of exploitation, pressure, etc., only stupidity. I just don't see the point in forcing the minors in this story to register as sex offenders (and, in Atlanta, subsequently live in a forest until the sheriff evicts them from even that).

As to something magically becoming child porn after being produced, I don't think that's particularly bothersome. A man takes a picture out of a young child development textbook which shows a picture of a naked eight year old, crops it so that all scientific content is removed, and sends it into the web. A later person having that image would be convicted of possessing child pornography because there is no apparent scientific value--and necessarily so, because it would be impossible for prosecutors to prove that the picture did not originate from an artistic, literary, or scientific work at some point in the past (and the same with any child porn that does not depict sex acts). If this scenario is possible, I don't see why a picture that a prosecutor deems not to be child porn in its production could not become child porn on the possession end after being traded around the web, at the risk of forcing the prosecutor to make an impossible demonstration.

Posted by: Res ipsa | Oct 8, 2009 9:17:00 AM

Res ipsa. you may not see the point of teens being tagged as SO but I would argue that Congress did. It's worthwhile to go back and read the debates about the law on this topic. Congress can be very wishy washy sometimes, as behooves a deliberative body, but I think in this case they wanted to draw a line in the sand and send a clear and unequivocal message. Congress sees child pron as a scourge. That's not hyperbole. They see it as a true plague on society.

The problem with "obvious" is that it boils down to a special plea. When you take an anti-biotic for a germ infection, it kills not only the bad gems but also the good germs in the stomach. I think that when one reviews the record it's obvious that Congress was accepting of that result. They were willing to tolerate some of the good germs dying for the sake of ridding the body politic for the disease of child porn. One can disagree with that assessment as a policy matter, but I don't think that applying the law harshly is out of line with what Congress wanted.

As for your second point, my point was not a practical one but a logical one. If one is going to say that the subjective intent matters when one produces child porn then the only logically consistent position is to say subjective intent matter when one posses child porn as well. Hence my crack about artistic merit. My point was that Congress wanted to get rid of subjectivity one both sides of the coin. They did not care why it was produced and they don't care why you have it. They want it stopped. period.

Just stop it.

period.

That's the message Congress is trying to send.

Posted by: Daniel | Oct 8, 2009 11:37:57 AM

I don't see what Congress did or what any federal child porn laws have to do with these sexting issues. Sexting crimes are being raised by local jurisdictions based on state law. The treatment will be inherently non-uniform throughout the country, and possibly even in one state. See Ohio. In Licking County, the DA received some notoriety for threatening high school students with child porn possession. While in Warren County, prosecutors were proposing decriminalizing the possession of dirty pictures of teens when they were simply shared among sexting teenagers. And if you're trying to argue some value of uniformity at the state level, regardless of who the offender is or what their intent was, then that's defied by the special purpose of child porn laws, which was the consideration of protecting the victim in the pictures. Which isn't achieved when said victim is threatened with felony convictions and long-term sex offender registration.

Posted by: Buffalo Bill | Oct 8, 2009 12:38:49 PM

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Great article. I really enjoyed the insights...

Posted by: auto insurance tacoma | Oct 29, 2009 3:51:30 AM

wow, 10 years is jail, for an underage is a huge impact don't you think?
but I think is fair enough, they dont have to possess porn.

Posted by: Miami Information | Apr 3, 2011 12:30:18 PM

this is one of the problem with our youngs in our days, I know what exactly they feel, and most of our know, we was like them, I gonna tell you a history, one of my neighbor is a pretty girl, one day she decided to make a cool gift to her boyfriend, she filmed herself in a "personal act", well to make short the history, in this moment she is treated like a prostitute for make this, poor girl.

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In my opinion the biggest flaw in your position is that you seem to believe that it's easy for anyone to apprehend the true purposes for which a picture of a child was made. Sometimes, of course, it's obvious in the case of an older adult having sexual relations with a pre-teen. But child porn encompasses much more. It includes children having sex with each other, children having sex with animals, and just plain old naked pictures of children. When one make the definition of child porn turn on the subjective reasons it was made one enter an impossible thicket from which no sane person can extract themselves. Again, there are obvious exceptions such as medical science. But in general it's impossible to ascertain why a particular picture was made.

The big problem is this is our youngs in our days, I know what exactly they feel, and most of our know, we was like them, I gonna tell you a history, one of my neighbor is a pretty girl, one day she decided to make a cool gift to her boyfriend, she filmed herself in a "personal act", well to make short the history, in this moment she is treated like a prostitute for make this, poor girl.

Best Regards,
Karen

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