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April 2, 2010

Should sexting lead to sex offender registration?

The question in the title of this post is inspired by this long ABC News piece from a segment on Nightline, which is headlined "'Sexting': Should Child Pornography Laws Apply?; Legal Debate Springs Up After Man Put on Sex Offender List for Forwarding Risque Images." Here is a snippet:

NYU law professor Amy Adler says "sexting" -- teens sending and receiving pictures of themselves in sexually suggestive poses -- wasn't even on the Supreme Court's radar when justices made their pornography ruling 28 years ago. "Technically, it is child pornography," said Adler. "But I don't think it's the kind of case where child pornography law is the right legal framework to use to judge it."...

"One thing is I think we may be sending mixed messages to teens right now, because mainstream culture is showing teens in all sorts of sexual scenarios," said Adler. "Mainstream television with "Gossip Girl," showing teens hooking up, Miley Cyrus engaging in what many people thought was pole dancing at the "Teen Choice Awards." So on the one hand we have mainstream sexual depiction of teens, and on the other hand we're telling teens that if they do that themselves, they can go to jail."

Plenty of teens are finding that out. In Iowa, Jorge Canal had to register as a sex offender, like Alpert, for sending a nude picture of himself to a 15-year-old girl. He was 18 at the time. In separate cases in Pennsylvania and Ohio, kids who've sent or received and distributed sexy photos have agreed to curfew, community service, or no cell phone or Internet usage for a few months.

"Child pornography law was crafted to protect children from pedophiles, that's the idea behind it," said Adler. "But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it's this odd situation where suddenly the pornographer and the victim are one in the same person. And in my view that's not the kind of scenario that child pornography law should cover."

Three states -- Nebraska, Utah and Vermont -- have already changed their laws. Fourteen other states ... are considering changes.

April 2, 2010 at 09:37 AM | Permalink

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Sexting should not lead to sex offender registration. It should not be addressed by law enforcement.

Posted by: beth | Apr 2, 2010 9:57:59 AM

OT, but something nice for Good Friday:

http://www.youtube.com/watch?v=8oVVitkT35w

Posted by: federalist | Apr 2, 2010 10:31:51 AM

"But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it's this odd situation where suddenly the pornographer and the victim are one in the same person. And in my view that's not the kind of scenario that child pornography law should cover."

But the problem with that position is that it's based upon a fundamental misunderstanding of how child pornography is actually made. It's factually wrong. A significant portion of child porn is not made by the adult; it's made by the child. The child takes the picture, the child films the scene. Sometimes it's done POV style, sometimes it's a child taking pictures of another child, sometimes it's children doing it all with no adults involved. The situation where there is a single adult taking pictures or filming a movie as they abuse a child is only a small sub-portion of child porn. That situation be what the public thinks of as the "the classic case" but that's just the point, it's classic; it's not how child porn is actually made anymore.

The problem with excepting sexting from child porn laws is that most child porn today is a simply sexting in some form or another. It is a seriously a dumb position (and mean it when I say dumb) to attempt to delineate child porn based up either the medium in which it is transmitted or who the producer is.

A a mentioned in a post some time ago. Children produce child porn. That's the essence of what it means to groom a child.

Posted by: Daniel | Apr 2, 2010 11:26:11 AM

Daniel,

I don't know what the actual quantity is, but I imagine that the child pornography traded over the internet, which almost certainly accounts for the vast majority of convictions today, is not produced at the initiative of the victim.

I really think the major point of divergence is the age range. While visual depictions of all minors (defined as under age 18 regardless of the age of consent) constitutes child pornography for purposes of federal and (most or all) state laws, the bulk of the child pornography prosecutions involve depictions of preteens, and the bulk of "sexting" cases involve teenagers creating nude photographs of themselves, on their own initiative. Which is to say that the "sexting" cases rarely if ever involve the production of contraband by another adult; in most cases the adults simply stumble upon the images after they have been created by the teenagers.

As far as "sexting" goes, the case of Jorge Canal is different. As an adult (age 18), he is free to take nude photographs of himself and to share them with other adults. He is not free to share them with minors, and that's the relevant registry offense, not child pornography. That case does not involve any contraband, just a prohibited activity/transaction. Of course, this is a Romeo & Juliet style prosecution, as the age difference (three years) is certainly not the conduct contemplated by the Iowa legislature when it prohibited the activity.

As for real "sexting," I don't know the best way to address it. Maybe by providing an affirmative defense of some sort.

Posted by: Alec | Apr 2, 2010 1:06:04 PM

how true alec! MOST of it is put there by the U.S Govt Law Enforcement. i've seen numbers that suggest upward of 80% of it is infact placed by the FBI as bait!

Posted by: rodsmith | Apr 2, 2010 2:30:54 PM

Alec.

Thanks for trying to engage this in a sensible way.

The difficulty is that "initiative" is as foggy as "consent" in these cases. The most fundamental technique of child pornographers is to make the child a willing albeit unwitting victim in their own abuse. The idea that all children "rat" on their abusers is unfounded. Look to the Elizabeth Smart case for an object lesson. Even when confronted by police officers she initially denied her own identity. Of course teens are going to say that they were only engaged in sexting; that's exactly and precisely what their abusers have taught them to say.

Furthermore, while it is true that child abuse can occur to a child of any age it's unfounded to think that many of these cases involve preteens. Regrettably, due to our harsh penal code, it's impossible to get a realistic handle on how the explosion of child porn on the internet has changed the face of pedophilia. But if we look at both historical (pre 1980) data and data from other countries we don't see any disproportional bias towards preteens. In fact, one of the more controversial aspect of the new DSM 5 is precisely the argument that there is no objective basis for a distinction between pedophiles who abuse preteens and those who abuse teens. The media would like you to think that "baby rape" is what pedophilia is all about but if you have the impression that most sexual offenders who are filling up our jails are engaged in that behavior you are simply misinformed.

The real problem here isn't age. The real problem is that there is no objective basis for determining what is "innocent" pranking and what is abuse. You ether have to ban all of it or ban none of it; otherwise you are making shit as you go along and mocking the concept of equality before the law.

Posted by: Daniel | Apr 2, 2010 2:41:49 PM

Sexting prosecutions confabulate viewing with pedophilia. Ask yourself whether we are scared of sexters or merely made at them. If we are merely mad at them then why do they need to register? Registration should be reserved for those we are scared of not those we are mad at.

Posted by: K | Apr 2, 2010 8:08:23 PM

The answer is obvious. No.

I have a far more useful idea. Any lawyer engaging in "pretexting" should get listed in a lex offender registry. Such an individual should have a review of all licenses, including that to drive. He should be denied housing, services, products, the vote, and surely get banned from serving in elected office. Should we be afraid of the registered lex offender? You bet, very afraid. He is an abuser of the law for base, rent seeking purposes.

Posted by: Supremacy Claus | Apr 3, 2010 12:14:43 AM

These pictures document the time of life when the person looks their best. No one will ever look better than during their teens. They have esthetic, artistic and personal nostalgia value. They also document a period of time in life when one is a total knucklehead. They may be shown to one's children when the latter try this argument, "You just don't understand." Case closed. They may end up on name badges during high school reunions at certain intervals, with their value increasing as time passes. So they may be annoying and embarrassing at the 10th year reunion, but precious at the 50th year one.

Their purposes are sometimes admitted by their makers. They want to make a boyfriend jealous or regret dumping them. The prosecution has the burden of proof, beyond a reasonable doubt, to show the interest is in prurience. When has that ever taken place, or even been demanded by weak defense lawyers?

Because of the ubiquity of these crimes, in the absence of substantial harm or damage, one suspects lawyer job generation is the aim of these prosecutions. They are also easy prosecutions, with objective evidence. The wrongful intent is not being proven.

Because of the corrupt and improper motive, these prosecutions should result in money sanctions and legal costs to the personal assets of the prosecutors, not to those of the taxpayers.

Make these prosecutorial dunderheads start doing their jobs stopping strangers from picking up little kids from streets, by force, raping them and dumping their bodies. Those folks have nearly total immunity, right now, thanks to the pro-criminal, dumbass lawyer running the criminal law. After the first conviction, waterboarding, a harmless enhancement of interrogation, should be permitted as a tool to clear many remaining unsolved case of child disappearance. The chance of any kind of hassle for kidnapping, assault, making recordings of such, is now about 1 in 100. That includes lawyer customers supervised by probation. One wants to just beat, with a stick, the incompetent, worthless, dumbass, self-dealing, lazy, government slacker lawyer. Go after kids. Immunize serial child killers. That is the cuckoo current, dumbass lawyer policy in effect.

All biased, pro-criminal judges must also be impeached. The judges should be held personally accountable in torts for the damage done by the criminals they released if they deviated from judge standards of professional care. These biased pro-criminal activist judges ignore professional assessments of great dangerousness. Why? To protect the lawyer customer, and to generate more government sinecures. On the appellate bench, they invent law and legislate. These inventions and personal preferences almost always go in one direction, toward more legal procedure, for lawyer jobs. For that, they should be arrested for insurrection against the applicable constitution with a corrupt aim, rent seeking.

Posted by: Supremacy Claus | Apr 3, 2010 8:16:10 AM

I find it a delicious irony that the great Claus, who has on numerous occasions criticized the judge and the jury for engaging in mind reading and mental voodoo, now all of a sudden insists that the judge and the jury do just that when it comes to matters of sex.

Oh what a tangled web we sow, when first we have too much fun being an internet troll.

Posted by: Daniel | Apr 3, 2010 11:00:26 AM

Daniel: Personal remarks show frustration in the traverse. You can do better.

Sometimes I address the law as it is today. Intent is unlawful, awful, and supernatural, borrowed from a church. This church attributed this power to God, in their faith. Not even the Medieval church believed man could read minds. Only the dumbass lawyer has been indoctrinated to believe that. I favor making all crime strict liability. But that is not the way the law is today.

The intent was to make a boyfriend jealous. The prosecution must prove otherwise beyond a reasonable doubt, not jealousy but prurience. How would you go about doing that? If you say, the images were sold to others for prurience, then arrest the others, not the maker of the images. If they circulated to 10% of a 1000 student high school, you got 100 cases. Go ahead. Try to charge 100 kids with federal child porn charges. Meanwhile, your real customer is trolling for kids walking to school, grabbing them, using them, killing them, and you are doing nothing about it.

As to trolling, who is a bigger troll than the lawyer? I have not generated $millions in defense costs. I have not imprisoned millions of innocent people. I am not destroying our economy, as the lawyer is doing. I am not allowing 17,000 murders and advocating loosing a million violent offenders. I am not causing every medical error (correct, the cause of every medical error is the lawyer). I am not suppressing our growth rate from 9% to 3%. I am not generating a $million in losses to our nation every year I breathe and work as a lawyer. No bigger troll than the lawyer land pirate.

Posted by: Supremacy Claus | Apr 3, 2010 11:47:39 AM

I agree with Daniel that Alec shows a sensible and fact-oriented approach.

Posted by: Bill Otis | Apr 4, 2010 10:33:24 AM

(1) Daniel writes that we should register those of whom we are "scared," and not those at whom we are simply "mad." However, this begs the definition of being "scared" (or fear) and the definition of "mad" (which we will accept as "anger" rather than the hysterical irrationality we could construe the term in this case to reflect).

(2) Fear (or the state of being scared) comes from either a natural aversion to perceived risks of harm or injury. When afraid, human beings make a flight or fight determination. However, one interesting quirk among human beings is the tendency to fear the unknown or unquantifiable. Thus, that about which we have insufficient data, often leads to fear. Thus, in this case we are quick to register while also being slow to study the situation to determine if either the initial response will work or if the initial response was appropriate--often this slowness comes from a fear of determining we are (or were) incorrect in the initial response.

(3) Anger comes from fear. Face it. When we are angry it is because we feel threatened in some way (and thus have a fear of certain loss). We respond to protect our percieved or real interest through aggression or other anger-based action. But ultimately, our anger comes from our fear.

(4) I tend to believe that if the American people were to stop and see actual data on sex crimes, recidivism and the effectiveness of treatment programs, the fear would subside and a more rational approach to the issue of preventing abuse would emerge. However, this would cost many politicians who have built their careers on perpetuating this fear. Most have relied on either old data, insufficient data, or purely fictional 'data' rather than conducting any reasonable amount of due diligence before approaching the election-time stump.

We are enforcing sex offender registration because we are in fact 'mad,' and not simply afraid or angry. As a result we will ultimately lose our democracy to our own irrationality.

Anyone interested in the collection of studies I have been reading to form this opinion should visit http://prevent-abuse.com or the public repository I have created at http://samcaldwell.net

Posted by: Sam Caldwell | Apr 4, 2010 2:58:27 PM

Sam.

You attributed the quote to the wrong person. I most definitely do NOT think that and in fact I avoided commenting on K's remark because I thought it was just silly.

Posted by: Daniel | Apr 5, 2010 1:42:00 PM

while neither of the cases discussed in the article are the classic icky perv type of case, both defendants have little room to complain. the florida defendant in particular has no room at all to complain about being branded a "sex offender." had he merely received photos as a teenager from his teenaged girlfriend, he'd be a sympathetic defendant - however, he intentionally and maliciously fowarded photos of her with the intention of hurting her. while being branded an "icky perv" may be unfair, its not unfair to see him as a total jerk. while harsh and not at all what the law and registration is intended, i have little issue at all with harsh consequences attaching to people who maliciously forward photos with the purpose of hurting their ex-girlfriend. there really isn't much different practically speaking between forwarding private naughty pictures or a violent physical or sexual assault - both have the same purpose of "punishing" the girl - surely the sex offender registry is not an inappropriate place for a person who intentionally seeks to sexually degrade another, even if it was only "virtual." really, even if the "victim" was an adult, there could perhaps be harassment charges brought as well as civil liability - in fact, i think that its now specifically listed as a sex offense in many states to intentionally forward private photos without consent. he may not be an icky perv, but he is a icky jerk and being an icky jerk is sufficient in my mind to qualify as a sex offender.

the iowa case is more problematic - he should still be convicted, but of lesser charges, maybe with no registration aspects as is done with consent laws in many states. branding him an "icky perv" is totally unfair - it wouldn't be unfair to charge him with a lesser crime which doesn't require sex offender registration, but that is up to the legislature to decide.

ginny :)

Posted by: virginia | Apr 6, 2010 10:18:47 AM

As a criminal defense attorney, I cannot see the rationale between life time registration for a "young" 21 year old male who received messages from a 15 year old and responded twice. The law must be changed.

Posted by: Adam Weiner | Apr 8, 2010 1:20:07 PM

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