« Justice Elena Kagan's first significant vote is against a stay of Teresa Lewis's execution | Main | Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvement »

September 22, 2010

"Sexting or Self-Produced Child Pornography?"

The title of this post is part of the title of this new piece by Professor Mary Leary that is available via SSRN. The full title of the article is "Sexting or Self-Produced Child Pornography? The Dialogue Continues – Structured Prosecutorial Discretion within a Multidisciplinary Response," and here is part of the piece's abstract:

The issues of “sexting” and “self-produced child pornography” (SPCP) have captured the attention of the media, courts, and state legislatures.  A debate rages among advocates, policy makers, and reporters about how the law should address this activity.  More than sixteen states have considered special legislation to address the problem and litigation has ensued. Lost in the debate are many realities including the complexity of the problem.  This behavior implicates aspects of child development, child sexuality, child exploitation, teen dating violence, education, and parenting.  While any deliberation about children and how the law should protect children is positive, sensationalism and oversimplification of this complex phenomenon undermine rationale debate.

This article builds on the concept that the solution does not lie in the criminal law.  Rather, it seeks to refocus the debate by suggesting that part of the solution depends on the formation of a comprehensive “smart” response. To accomplish this, society and its institutions (educational, social service, religious, law enforcement, legal, and civic) must come together and form a considered strategy that encourages prevention and a smart response when prevention fails.  This article examines the role of prosecution, if any, in that “smart” response. This article argues against the use of blunt instruments that fail to recognize the complexity of SPCP.  These extremes include “zero tolerance” policies, which in most cases do far more harm than good; decriminalization, which prevents a prosecutor from ever abusing his or her discretion, but also precludes juvenile court intervention even where the conduct is particularly egregious or the youth is in particular need of such; or an ad hoc approach by prosecutors which risks inconsistency, unfairness, and bias.

This article proposes an alternative approach which balances the need for fairness with a need for flexibility: Structured Prosecutorial Discretion within a Multidisciplinary Approach.  It is grounded in the recognition this complex problem covers a broad array of behaviors: from naïvely producing inappropriate images, to coercion, to maliciously distributing images of others virally.  The proposed model calls for prosecutors, together with members of other disciplines, to accept a protocol whereby a variety of proposed factors are considered, in a systematic way, in evaluating cases.  Structured Prosecutorial Discretion is characterized by a rejection of mandatory prosecution, exposure to sex offender registration, or adult criminal court, at one extreme, and decriminalization at the other.  Structured Prosecutorial Discretion would allow juvenile court prosecution to remain as part of a multidisciplinary response for only the most egregious cases (such as vindictive distribution of the images, coercion of the victim, etc.) and only after the implementation of offender-based and offense-based protocols.

Some related "sexting" posts:

September 22, 2010 at 08:02 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Sexting or Self-Produced Child Pornography?":


nice but a wash! since even if they do it the way they say there are gonna do it. There is NO guaranteed that any child suckered into any kind of plea under it won't have the rug and their live pulled out from under them 6month or 6years later if the govt changes their mind again. It's not like it's not alrady happen in other sex crime laws.

Posted by: rodsmith | Sep 22, 2010 10:18:52 PM

even if there is NO conviction or plea under this that is no guaranteed that down the road the govt won't use the fact it' in their file to hammer them if they happen to get caught up by law enforcment for ANYTHING.

Just look at the other posts on this forum where people are getting hit with sentence enhancments or even forced to register years later for conduct they were never convicted of.

Posted by: rodsmith | Sep 22, 2010 10:21:56 PM

As long as I do not impose a cost on anyone else, am I allowed to burn down my house, take a sledge hammer to my car, and cut up my own arm? If older than 14, and suffering from terminal cancer, can I refuse additional futile treatment, against the wishes of the parents? Is sexting self childhood sex abuse? Can masturbation be self rape and sex abuse?

Posted by: Supremacy Claus | Sep 23, 2010 1:46:01 AM

The practice is ubiquitous enough to generate a lot of lawyer jobs, after it is explicitly criminalized by the lawyer dominated legislatures mentioned. The rent seeking statute will be a form of armed robbery. As with other armed robbery, self-defense by the public has good moral and intellectual justification.

Butt banging that spreads a disease killing 40 million people has full protection of the lawyer, from the highest level. Pics of kids wrapped in a towel will result in registration as sex offender and in draconian punishment. That is the out of control lawyer running things.

Posted by: Supremacy Claus | Sep 23, 2010 6:34:55 AM

Structured Prosecutorial Discretion within a Multidisciplinary Approach sounds complicated, and subject to much lawyer procedure, dispute, and job generation. It is a lawyer scam. I am going to guess the professor is a feminist. If she is, we are paying attention to bogus hate speech. As the tenets of the KKK were widely assumed without controversy, 100 years ago, so the tenets of feminism will be disgusting to people in 100 years. The KKK was a lawyer founded and run organization that immunized genocidal rampages and the seizing of the assets of achievers from targeted groups. Feminism does the same.

Posted by: Supremacy Claus | Sep 23, 2010 6:46:10 AM

There's another approach the government should consider: leave the kids alone and let their parents deal with it.

I agree with what Rod said. This is always how these things start, with the notion the government will restrain its compulsion to criminalize and severely punish anything it can stretch its malleable statutes to cover.

Today it will just be the egregious cases that get prosecuted, but soon the prosecution boundaries will expand...and lives will be ruined needlessly in the government's domineering, messianic quest to smother us all under its protective blanket.

Posted by: John K | Sep 23, 2010 1:32:33 PM

Kids are gonna be stupid. Do we punish them, even though they are not old enough to smoke or drink?I think not. This is totally out of hand.. can't we just make them wear a dunce cap for a year in school instead? That kind of embarassment would be more proper than a sex offender registration. If Mr. Creepy Janitor was taking the pics, I could see how this is really a crime.. but in the end its just a kid being stupid.

Posted by: tbucket | Sep 23, 2010 1:37:43 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB