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February 8, 2011

Should parents face punishment for their kids' sexting?

The question in the title of this post is prompted by this local story out of Texas, headlined "Proposal Would Punish PARENTS of 'Sexting' Teens."  Here are the details:

A measure which would allow a judge to punish the parents of teenagers who engage in the risky practice known as 'sexting,' was introduced today in the Texas Legislature, and immediately received the support of Texas Attorney General Greg Abbott....

The measure, introduced by State Sen. Kirk Watson (D-Austin), would make sexting a Class C misdemeanor requiring a court appearance for the teenaged violator, and would allow a judge to 'sentence' his or her parent to participate in an education program on sexting's long-term harmful consequences.

'Sexting' is the use of a e-mail or a texting service to transmit an explicit photograph of themselves or of another teen.  "This bill ensures that prosecutors, and, frankly, parents, will have a new, appropriate tool to address this issue," Watson said. "It helps Texas laws keep up with technology and our teenagers."...

Currently, teens engaged in 'sexting' can be charged with possessing or trafficking in child pornography. That offense carries the potential of decades of prison time, plus the requirement that the teen register for the rest of his or her life as a sex offense pervert. "This bill's legal provisions ensure that minors are punished for their improper behavior, but do not face life altering criminal charges," Watson said.

The law would also allow teens who successfully adhere to the court's requirements, which includes completing an ‘education program’ about the consequences of sexting, to petition to have the misdemeanor offense expunged from their records.

February 8, 2011 at 08:46 AM | Permalink

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The answer is no.

My guess is that someone has already already developed the curriculum and is waiting for the first court appointed paying clients.

There may also be law enforcement and prosecutors office employees who look forward to the content of the investigation.

Posted by: beth | Feb 8, 2011 12:14:45 PM

It's nice that Texas is making a great leap into the modern age and not saddling kids who make stupid decisions with felony convictions and perpetual registration.

But I am completely confused by the putting the parents on the hook. Is this a strict liability offense? If so, why not also require parents to go with their kids to alcohol awareness meetings when their teens get caught at a party? An absolutely pointless and stupid proposal. As SC would say, more government lawyer make work.

Posted by: Res ipsa | Feb 8, 2011 12:19:28 PM

My favorite part of this article:
"...plus the requirement that the teen register for the rest of his or her life as a sex offense pervert." Is registering as a "pervert" different from registering as a sex offender? Just wondering, Texas.

Posted by: Morgen | Feb 8, 2011 12:42:00 PM

This proposal is problematic principally because it's the nanny state run amok. Law and government are not the answer to everything; families and the broader culture should have the lead role for something like this.

The proposal also goes too far in diluting responsibility. A 15 year-old is usually mature enough to be responsible for whatever he's sending out over his i-phone. Parents have very little direct control over this sort of thing. Such "control" as there is will have to have come from years of having taught your kid about privacy, prudence and decorum (not to mention teaching them that whatever they put into cyberspace stays there forever and is potentially available to anyone, including enemies and pervs).

Liberals seem to think that passing a law, and sometimes a criminal law, is the answer. This is why, for example, we see liberals supporting more laws against vaguely defined "bullying." Count me out.

The state has the right and the power to prevent, if it can, and criminally punish when prevention fails, adults of sound mind when they intentionally undertake socially dangerous behavior -- be it intimidation, violence, stealing, swindling, drugs or what have you.

But if quaint relics of our past like limited government, family life and cultural (as opposed to legal) sanctions are to survive, criminalizing the parents for the nuddie photos/immature judgment of their teenagers strikes me as a poor idea. We need to get serious about what IS serious (such as effectively implementing the death penalty for gruesome murder(s)), and let societal institutions other than criminal law handle teenage experimentation.

Posted by: Bill Otis | Feb 8, 2011 3:03:21 PM

Bill,

I don't think that liberals created this problem, given that I cannot imagine why a liberal would want to ruin a kid's life by prosecuting them for possession, manufacture or distribution of child pornography for taking nude photos of themselves or their peers. Granted, I think that liberals and conservatives alike have indulged in the moral panic that created our draconian sex offender regime, but I think that conservative and authoritarian individuals have more than a little to do with creating the demand for this law. It was Republican District Attorney George Skumanick of Pennsylvania's Wyoming County who threatened teenage girls with child pornography prosecutions for "sexting," after all, a threat that was ultimately resolved with intervention by the Third Circuit. Whatever you make of the man, I don't think that the Republican candidate would have described himself as a "liberal."

As for the objections to the bullying legislation, I agree that many of the proposals are too vague. That does not appear to be a conservative criticism, more a civil libertarian critique. The conservative criticsm of bullying laws seems to be rooted in the inclusion of two words: Sexual orientation.

On this, however, we mostly agree:

We need to get serious about what IS serious...and let societal institutions other than criminal law handle teenage experimentation.

I would include adult "experimentation" with psychoactives and also suggest ending the drug war, focusing our attention on violent/sexual and serious property offenses.

Posted by: Alec | Feb 8, 2011 4:36:52 PM

lol just what the US needed ANOTHER RETARDED STUPID AND ILLEGAL law on sex crimes.

When the state will put you in jail for simply yelling at your child when they do something wrong..just how the hell is the parent supposed to control them especially something like this.

Posted by: rodsmith | Feb 8, 2011 5:27:58 PM

Alec --

The reason I tagged liberals is that they are more into using mechanisms of government control, and using them in more expansive ways, than conservatives. See, e.g., speech codes, which punish students for what others subjectively find "offensive" or "unwelcoming." I never heard of a conservative who supports stuff like that. The conservative answer, or at least THIS conservative's answer, to "offensive" speech is to make a counterargument, or just ignore it. People have started to look to take offense so as to be able to claim the advantages of victimhood. This is no part of the conservative agenda, but liberals can't get enough of it.

Same deal with this bullying business. What, bullying is new? Not exactly. What's new is the notion -- a liberal notion -- that "sensitivities" must be protected, and that state power, up to and including criminal law, is the thing to employ to protect them.

As the electorate correctly decided last November, we have a government that's too controlling, too indebted, too undisciplined and too damn big. It needs to be reduced to its traditional job of protecting us from concrete harms, including those caused by murderers, thugs, cheats, thieves, swindlers, meth peddlers and you name it. Parents who fail in the virtually impossilbe mission of controlling what their teenagers put out on their i-phone simply do not make my list of those at whom criminal law should be directed.

All the talk about sex offender laws that seems to be of such interest on this blog leaves me cold. To me, it's not that hard. If an adult is prodcuing films of an eight year-old being forced to have sex with animals, he needs to be in jail for a really long time, all the hand-wringing about "incarceration nation" and Puritanism run amok notwithstanding. If, on the other hand, a teenager is sending nudie pictures of himself to his/her boyfriend/girlfriend, the notion that the criminal justice system should be involved is nuts. SOMETHING needs to be involved, you bet: The father. You know, the traditional families that liberals ceaselessly deride.

Of course there are gradations of sex offenses, lots of them, but the reigning meme on this blog that sex offenses are nothing but teen texting and public urination is an outright lie. There are boatloads of serious sex offenses that need to be dealt with harshly. Putting PARENTS in jail for their pubescent kids' texting is not one of them and is, to the contrary, and just as I said, the hallmark of the over-controlling liberal nanny state.


Posted by: Bill Otis | Feb 8, 2011 6:08:50 PM

I couldn't agree more with Bill that there is far too much governmental intrusion into people's private lives. What business is it of the government if I choose to smoke marijuana on my own property and on my own time? Or gamble on the Internet? Right?

Posted by: SRS | Feb 8, 2011 6:43:59 PM

SRS --

Not everything is about marijuana legalization -- nor, for that matter, about meth legalization, whether or not "on my own property and on my own time."

Doug's post here is about sending parents to jail when their teenagers do sexting, and that is the locus of my response.

Posted by: Bill Otis | Feb 8, 2011 7:30:02 PM

bill: "The reason I tagged liberals is that they are more into using mechanisms of government control, and using them in more expansive ways, than conservatives"

me: says the hetereosexual drug warrior who does not have to worry about getting pregnant.

bill: "See, e.g., speech codes, which punish students for what others subjectively find "offensive" or "unwelcoming."

me: speech codes? seriously, that is your example? especially since the conservative opposition to speech codes is primarily based on the fact that the homophobic, sexist, and racist speech which they oh so frequently engage in might be covered. That is if there really were the type of speech codes that they complain about. where speech codes actually exist, what is actually covered almost always qualifies as sexual or racial harassment. In any case, I would consider trying to ban an unmarried woman from receiving birth control to be a much greater infringement on liberty than telling some sexist jerk to stop making sophomoric lewd comments to the same woman. Of course, I also think that girls and women have a right to go to school or go to work without having to put up with sexist comments.

bill: "I never heard of a conservative who supports stuff like that"

me: conservatives are too busy trying to install official school prayers, tell women what type of clothes they can wear, tell people who they can get married to or have sex with, prevent unmarried women from getting birth control, telling people they can only take the potentially dangerous narcotics prescribed by their doctors, tell people how they must express their "patriotism," confine speech at official appearances to so called "free speech zones" which were not even visible from the official site, engage in warrantless searches and wiretaps, try to tell people what type of music they can listen to, movies and tv programs they can watch, websites they can look at - do I really need to go on, or have I made my point? seriously, why are the only liberties which conservatives appear to actually be interested in are their liberty to own assault weapons, impose their religion on others, and make offensive comments against women, minorities, immigrants, and homosexuals?

bill: "we have a government that's too controlling, too indebted, too undisciplined and too damn big. It needs to be reduced to its traditional job of protecting us from concrete harms,"

me: says the person who just complained about government bullying business - so apparently, concrete harm in your world only includes harm conducted by the poor and does not include say a food company selling spoiled meat, an automobile company selling defective automobiles, or a company having dangerous machinery operated by children. You know that people had oh so much individual liberty during the Gilded Age - parents had the ability to put their children to work in textile mills when they were 8, children had the liberty to not have to go to school, workers had the liberty to live and work in dangerous and unsanitary condition, workers had the liberty to work as many hours as they wanted for as low of pay as they could get, and businesses had the liberty to refuse service based on color, nationality, religion, or whatever. Oh, and women couldn't even vote then - and you didn't have to worry about women or minorities being offended by your sexist jokes because you didn't have to hire them.

bill: "There are boatloads of serious sex offenses that need to be dealt with harshly"

me: I'd appreciate your concern about serious sex offenses more if you showed any sign that you were concerned about women or children in any other way other than as "victims." Really, Bill, when you imply that offensive comments are perfectly fine and if a woman does not want to work or send her daughter to school in environments where women and girls are casually degraded in the crudest possible terms that equals a horrible degregation of freedom, then you are really clueless. of course, the fact that you so casually toss about the term "nanny state" without bothering to think "you know, this term is rather sexist" speaks volumes. although perhaps conservatives constant referring to the "nanny state" speaks more towards a subconscious desire for activities better left to the privacy of the home ;)

bill: "Putting PARENTS in jail for their pubescent kids' texting is not one of them"

me: huh? who was talking about putting the parents in jail? according to the article, the parents would have to take a class on the dangers of sexting. although I am not convinced that the educational program is the way to go, I'm also not convinced that is a bad idea in concept to punish parents when teens engage in sexting. If you believe in deterrence (or does deterrance only work with the uncertain prospect of possibly being killed sometime in the future stopping someone with a long history of mental illness and borderline intellectual functioning from killing someone?) then it makes sense to go after the responsible parties. Irresponsible parents who provide powerful technology to their children without supervision are in my opinion, as blameworthy as irresponsible parents who provide alcohol to their teenagers to drink without supervision. Yet, I;m sure that none of hte people opposed at the idea of charging parents for their children's sexting would oppose charging the parents who give alcohol to their children. Perhaps a better comparision is firearms - does anyone believe that a parent who gives a teenager a gun and ammunition and firearm training or does not provide any responsible supervision of the kid's use of the firearm and that kid goes out and shoots up their school that the parent would get arrested for giving their kid the gun and not supervising their use? Not that sexting is as bad as shooting someone, but the principle is the same - the parties who are supposed to be responsible (the parents) weren't responsible causing the teenager to harm themselves or others.

ginny :)

Posted by: virginia | Feb 8, 2011 7:41:24 PM

ginny --

If you passed up a single shibboleth in the liberal/feminist/culture-of-victimhood world, I missed it.

And if you're waiting for me to apologize for being a "hetereosexual drug warrior who does not have to worry about getting pregnant," you'll be waiting a long time, since, among other things, Barack Obama fits the same description.

Cheers!

Posted by: Bill Otis | Feb 8, 2011 8:01:18 PM

Bill --

Actually, your response was to "tag liberals" because "they are more into using mechanisms of government control," such as speech codes and bullying. I didn't see anything about speech codes or bullying in the article.

If you're worried about going off-topic, physician, heal thyself.

And to suggest that it's only the dreaded liberals who are into government interference in our private lives is laughable.

Posted by: SRS | Feb 8, 2011 8:08:42 PM

SRS --

1. I do not believe criminal law should be used to target parents of pubsecent kids who text nuddie pictures of themselves to their same-age friends, largely or entirely outside their parents' direct control. That is a job for parents, not government.

Do you agree or disagree?

2. I said, "As the electorate correctly decided last November, we have a government that's too controlling, too indebted, too undisciplined and too damn big. It needs to be reduced to its traditional job of protecting us from concrete harms, including those caused by murderers, thugs, cheats, thieves, swindlers, meth peddlers and you name it."

Do you agree or disagree?

Posted by: Bill Otis | Feb 8, 2011 9:11:26 PM

This is the work of the vile feminist lawyer and its male running dogs, to go after the productive male, in the form of the father of the teen, and hard earned assets.

1) It violates procedural due process rights to punish another person for the crime of a defendant.

2) No harm can be shown from sexting. Physically harmful acts should be criminalized. Harmless acts should not. Unauthorized republishers of any pictures may be deterred in torts.

3) It is not a crime to destroy or damage one's chattel or one's body. I can burn down my house if I do not try to claim insurance nor harm others. For example, a far more extreme form of self harm, suicide, has been decriminalized. Ironic that the vile feminist lawyer extends the dominion of the body over the viable fetus of the female, but taking a picture of oneself wrapped in a towel is to be prosecuted.

Posted by: Supremacy Claus | Feb 8, 2011 9:57:43 PM

SC --

"It violates procedural due process rights to punish another person for the crime of a defendant."

Nailed it. You take a lot of flak on this blog, and in all honesty you invite some of it, but this is not the first time you have summarized a basic truth more accurately and succinctly than your critics seem willing to do.

Posted by: Bill Otis | Feb 8, 2011 11:35:27 PM

bill: "If you passed up a single shibboleth in the liberal/feminist/culture-of-victimhood world, I missed it."

me: considering that your posts came from the conservative/white male/culture of victimhood world its only fair :P

bill: "And if you're waiting for me to apologize for being a "hetereosexual drug warrior who does not have to worry about getting pregnant," you'll be waiting a long time, since, among other things, Barack Obama fits the same description."

me: yet in the conservative/white male/culture of victimhood world that you inhabit, you (maybe not you personally, but your brotherhood in the conservative/white male/culture of victimhood world) hate Obama and claim that he is a dictator even though you have so much in common policywise. Why is that anyway? I don't expect an honest answer :P

supremacy claus: "It violates procedural due process rights to punish another person for the crime of a defendant"

me: yet the law does it all of the time - sometimes its called facilitation, sometimes its called being an assessory before the fact, sometimes its called a conspiracy. I'm sure that Bill even prosecuted some of those cases. Yes, in every case there is some sort of criminal action by the defendant, but last time I checked child neglect and contributing to the delinquency of a minor are crimes - and facilitation of crimes is also illegal. What is so radical about a notion that giving a teenager unfettered access to a cell phone with picture, email, and internet capacity without making sure they are mature and educated enough to use it responsible is in fact a form of child neglect? Bill keeps saying its the parents responsiblity, yet he also wants to absolve them of all blame. If parents know they cannot adequately supervise their children's cell phone usage, they should not be getting them cell phones - especially not picture phones. I just don't see how its any different practically between this or any other facilitation crime.

ginny :)

Posted by: virginia | Feb 9, 2011 7:45:37 AM

Bill --

Thanks for setting aside your bullying and speech code discussion and getting back to the topic at hand.

"1. I do not believe criminal law should be used to target parents of pubsecent kids who text nuddie pictures of themselves to their same-age friends, largely or entirely outside their parents' direct control. That is a job for parents, not government.

Do you agree or disagree?"

Totally agree. I also don't believe criminal law should target the kids themselves. Agree or disagree?

"2. I said, "As the electorate correctly decided last November, we have a government that's too controlling, too indebted, too undisciplined and too damn big. It needs to be reduced to its traditional job of protecting us from concrete harms, including those caused by murderers, thugs, cheats, thieves, swindlers, meth peddlers and you name it."

Do you agree or disagree?"

Too complex a question to answer in one word. If you polled 100 people who voted Republican last November and asked if the government should get out of the road-building or mail delivery business, 95 would say "no," even though that's not protecting anyone from concrete harms.

But that's getting far afield from the more precise question of whether the law in the article above is silly and wrongheaded. It is, and so is imposing lifetime sex offender registration on a teenager for "sexting." Hopefully we can agree on that.

Posted by: SRS | Feb 9, 2011 10:53:54 AM

Calling this “liberal” or “conservative” detracts from the real legal issues. Whenever a lawyer starts throwing around these labels, I know he is being a hack. These are labels for the lower-class lay people only.

Now, of course, there are due process arguments with punishing person B for the actions of person A. There are first amendment problems with making anyone attend ANY class.

But, here is the bigger elephant in the room that I don’t think that anyone really wants to address. Do the kids have a right to their own sexuality? I don’t have a good answer to this question but, at some level: 1) everyone seems to agree that children have a right to read and view sexually explicit media (for whatever reason, “reading” seems to be more protected than viewing); 2) minors have some right to access to sexual information, abortion, and even free association). Thus, in the US nobody would ever seriously argue that a minor cannot associate with a person of another race because they might have sex with them. (Usually most parents say that their kids can’t associate across races because their putative friends are lower-class, lower-income, and their parents lack graduate degrees.). And finally, there seems to be a general understanding that teenagers will be having sex. Yes. There, I said it. (And if you deny it, you are a naïve idiot.)

The question therefore become whether teenagers have a right to incorporate electronic photographs into their sexual activities. Well, the circuits are split as to whether they adults can buy sex toys. And, indeed, I remember reading (in college) that an “alternative” to “penetration” was “snapping sexy photos of each other.”) And, unless we are going to argue that sexting is simply not sexual, we need to explain why generally legal for two same-aged teenagers to have penetration sex, but illegal for the same teenagers to document something sexual, but not penetrative.

So, there is the elephant. Go chase it.

Posted by: S.cotus | Feb 9, 2011 12:08:04 PM

SRS --

There are instances where the criminal law should "target" the kids and instances where it should not.

Example of where it should: A 17 year-old boy sends a blast message to the whole school, plus his 15 year-old ex-girlfriend's parents and grandparents, plus the prep schools to which she's applying, displaying the lewd and rauchy nude pictures she sent him while their relationship was on-going. He does this to humiliate her and get revenge because she broke up with him. That is a malicious, public, intentionally hurtful act and properly subject, in my view, to criminal sanctions.

Example of where it should not: A 14 year-old girl sends nude pictures of herself to her 14 year-old boyfriend, with whom she's madly in love. The boyfriend's pest of an 11 year-old brother finds them and shows them to his parents.

I am unable to detect anything going on that a normal person would think of as criminal. The parents should handle it.

Posted by: Bill Otis | Feb 9, 2011 7:01:43 PM

Bill,

You use your first example as an instance where the criminal law should be used. What's less clear is whether or not you believe a 17 year old in a relationship with a 15 year old should face child pornography charges for that conduct; specifically, receipt, possession and transmission/dissemination of child pornography. The issue is not disciplinary action; after all, the conduct is connected with school and at the very least school administrators would be in a position to discipline him for it, in addition to whatever private community sanctions were applied (loss of allowance and driving privileges, for example). But child pornography charges? Given the "collateral" consequences of a sex crime conviction, that seems unnecessarily harsh and disproportionate to the conduct. He is, after all, 17, not 27; there is a three year difference in age, not a twelve or thirteen year difference in age.

Additionally, while the conduct you describe in your first example is certainly more egregious for sentencing purposes than the conduct described in your second example, the individuals involved have still violated the child pornography laws. They are still culpable for, inter alia, manufacturing, possessing, receiving and distributing/transmitting/disseminating child pornography. The rationale for criminalization in the first instance is a) revictimization and b) affecting the market demand for child sexual abuse. There is nothing distinguishable about the conduct as it relates to the rationales for criminalization, is there? Both "victims" were more or less willing participants who face the same risk of "revictimization" given that they could not consent as a matter of law, and all of the offenders (everyone save the 11 year old) had the same impact on the market demand for child sexual abuse.

You say that a line should be drawn, and the first teenager charged, the second teenager should not face any criminal sanction. But you have not identified any difference in the evil that the legislature intended to combat, at least with respect to the child pornography laws (stalking and intentional infliction of emotional distress, or invasion of privacy, yes). Why should we trust prosecutors with drawing those lines? Why not just remove these kids from the ambit of the pornography laws altogether?

Posted by: Alec | Feb 10, 2011 11:31:12 AM

Alec --

My post was not as ambitious as it seems you want it to be. The headline of Doug's entry here is whether PARENTS should be subject to criminal law (and not, specifically, CP law) for their teens' sexting.

In talking about that, SRS asked me this: "I also don't believe criminal law should target the kids themselves. Agree or disagree?"

The question SRS asked me referred to "criminal law," and that was the question I answered.

You now ask me to go beyond that, and I will do so, although probably not to the extent I think you would like.

As I said, I don't think the second example warrants the application of criminal law at all. This is true even though, as you say, it fits the statutory description of CP.

The reason for my decision is simple. When you're a prosecutor, the first thing you have to decide is whether you're dealing with a criminal. The 14 year-old girl in my second example is not a "criminal" in any sense recognizable to me or the great majority of normal people.

You ask then, "Why should we trust prosecutors with drawing those lines?"

The answer is that the Constitution and long-standing historical practice, not to mention the practicalities of life, so dictate. The founders well knew that not every potential criminal case would get brought and that someone would have to make the decision as to what gets left on the editing room floor. That someone turns out to be an officer of the executive branch, to wit, the prosecutor. This is true in the CP area as it is in every other area of criminal law. Indeed, I can tell you, based on years of experience as an AUSA, that there are boatloads of convictable cases that never get brought.

If the electorate is dissatisfied with the prosecutor's judgment, they can fire him at the next election. But the economic realities aren't going to change: There are more cases out there meeting the statutory definition IN EVERY AREA OF CRIMINAL LAW than can possibly be brought, so some get brought and some don't.

I would no more indict the 14 year old girl in the example I described than I would fly to the moon. Her parents need to have a talk with her, you bet, because she is endangering herself in ways of which she is unaware. But she is simply not a criminal as normal people understand that word, and she is not getting indicted on my watch, period. I have more important things to do with the taxpayers' limited money.

The 17 year-old S.O.B. of a boy in my first example is a different matter. Something identifiably criminal -- malice and planning -- is going on, and, as a prosecutor, that rings the bell with me. The guy is a thug. This time it's pictures; next time it will be something else and maybe worse.

As to whether I would use the CP laws in particular -- well, it is beyond the scope of my present ambition to discuss that. I would have to think more about it. Perhaps I will, and say more later.

Meanwhile, it seems like I have to apologize to ginny for using what she regards as the insulting sexist phrase "nanny state." (As you see, not everyone on this blog is intereted in being serious).

Posted by: Bill Otis | Feb 10, 2011 3:06:16 PM

well bill i think you hit it right on the head with this one! i agree 100%

"The answer is that the Constitution and long-standing historical practice, not to mention the practicalities of life, so dictate. The founders well knew that not every potential criminal case would get brought and that someone would have to make the decision as to what gets left on the editing room floor. That someone turns out to be an officer of the executive branch, to wit, the prosecutor. This is true in the CP area as it is in every other area of criminal law. Indeed, I can tell you, based on years of experience as an AUSA, that there are boatloads of convictable cases that never get brought.

If the electorate is dissatisfied with the prosecutor's judgment, they can fire him at the next election. But the economic realities aren't going to change: There are more cases out there meeting the statutory definition IN EVERY AREA OF CRIMINAL LAW than can possibly be brought, so some get brought and some don't.

I would no more indict the 14 year old girl in the example I described than I would fly to the moon. Her parents need to have a talk with her, you bet, because she is endangering herself in ways of which she is unaware. But she is simply not a criminal as normal people understand that word, and she is not getting indicted on my watch, period. I have more important things to do with the taxpayers' limited money.

The 17 year-old S.O.B. of a boy in my first example is a different matter. Something identifiably criminal -- malice and planning -- is going on, and, as a prosecutor, that rings the bell with me. The guy is a thug. This time it's pictures; next time it will be something else and maybe worse."

Posted by: rodsmith | Feb 10, 2011 9:26:31 PM

rodsmith --

Thanks!

Posted by: Bill Otis | Feb 10, 2011 11:11:58 PM

bill: "As to whether I would use the CP laws in particular -- well, it is beyond the scope of my present ambition to discuss that"

me: I think that the case why you would not want to use the cp laws in that case would show that there probably should be some new crimes created. In the case of the 17 year old maliciously sending out photos of the 15 year old, the CP laws would apply - however, what if the person sending out the photos is 21 and his girlfriend is 19 and the 21 year old does the same thing? Not being a creative prosecutor, I'm at a loss to determine what exact criminal law would cover the 21 year old's action which is equally malicious and damaging to the 19 year old. Yes, the 19 year old would have a civil action against the 21 year old. Relying on the CP laws to go after the 17 year old in your csae leads to a particuarly unsatisfactory situation in that if an adult does the same malicious and harmful act to another adult - it may well be not covered by any existing criminal law (because the 19 year old woman provided the photo voluntarily in your fact pattern, computer hacking laws would not apply - and violations of the right to privacy/false light are as far as I know strictly civil actions - maybe there is a criminal violation of privacy law that would apply, but most of them seem more aimed at peeping toms or upskirt cameras or similar acts where the original photo was not provided voluntarily). Even if there is an existing law covering the same act committed against an adult woman, there would be major problems in the fact that the teenaged boy who does it against the girl would face way worse punishment than a man who does the exact same malicious act against a woman. There should be a signle crime that would cover both the malicious act that you describe whether the victim is underaged or an adult. MAybe there is and I'm simply unaware of it, but even allowing the law to give the option to go after the 17 year old who victimizes a 15 year old girl with draconian CP laws where the 21 year old who victimizes a 19 year old woman in the exact same way is a problem because not every potential prosecutor may not share your same views. New techology needs new laws.

However, another stated approach that of Alec who asks "Why should we trust prosecutors with drawing those lines? Why not just remove these kids from the ambit of the pornography laws altogether?" is also extremely problematic in several respects. First, with the 17 year old scenario of Bill's there becomes the same problem I have with applying the scenario to adults - what crime then applies? The privacy violation actions and existing laws aimed at peeping toms (sorry Bill, I guess that peeping toms is probably sexist against men - and especially discriminatory against men named Tom!) and which most apply are all civil actions as far as I know. Then say you start changing the facts some - what if the 17 year old rather than sending them decides to post the photos of the 15 year on the internet where anyone - rather than just people he knows as Bill listed - can see them. Remove the 17 year old from CP possession and distribution laws and all of a sudden you have a scenario where the 17 year old distributed a child porn image and he may be not being able to be prosecuted even though everyone who receives not directly from the 17 year old it could be.

Now look at the 14 year olds - what if the 14 year old boy and girl keep the photos. What if they stay together and as adults get married and kept all of their old photos. Say they are now 24, and the old photos of her when she was 14 are discovered. Would they be guilty of possession of child porn then because they were no longer children - or does their original creation of the photos when they were 14 enable them to retain the photos even as adults without penalty. What if instead of a nude photo, it was a film of them having sex. What if the 14 year olds found out that there were people who would pay money to watch them have sex and they sold it and that person posted it online - what if they started their own young teen porn website? Now, the law you have says that children are not subject to the child pornography laws for the images they have or create. However, here are 14 year olds who are selling their own images online? Would they be able to be prosecuted if children are exempted from child pron laws? Would their customers be able to be prosecuted because the images were created by the children themselves and therefore legal?

What if the 14 year old boy has an icky perv uncle who is trying to get him to get as many nude photos of the girls in his class as possible? Would you still be able to go after the adult who was directing everything if the images that the kid gets are "legal" - how would it work with the images being legal for the kids but illegal for everyone else or does the original self creation by kids who are exempt from child pronography laws make the images legal somehow (and again, how does the issue of what happens if the kids keep the images past their 18th birthday?)

Exempting children form the child pronography laws would create all sorts of uncertainty and may well give free reign to predators to exploit children - yes, most child pron defendants have images of younger children, but there are predators who target young teenagers. Any scenario to completely legalize "sexting" could create a loophole that those predators could drive a truck through.

Yes, make true "sexting" a separate crime - and yes, in my view punish the parents for being irresponsible and not supervising their children properly - but don't completely exempt those childeren from Child porn laws.

bill: "Meanwhile, it seems like I have to apologize to ginny for using what she regards as the insulting sexist phrase "nanny state.""

me: but it really is rather sexist since it sees overbearing control as a female trait :P

bill: "(As you see, not everyone on this blog is intereted in being serious)."

me: Some things are so crazy that just can't help but to laugh at them ;)

Too bad that all too often issues related tosex crimes qualify :(

And bill, I do consider it to be serious to point out that given that all too often adults have proven themselves completely unable to use new technology in a responsible manner or without literally exposing themselves to the world that it is perfectly reasonable to consider that any parent who gives their children unfettered access to the internet and smart phones really does engage in child neglect. When my children are teenagers, the only way they are going to get a cell phone is if I can find an old cell phone that only makes and receives phone calls - and if they don't like it or I can't find one it, no cell phone for them. I guess that makes me mean ;)

ginny :)

Posted by: virginia | Feb 11, 2011 10:09:59 AM

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