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March 30, 2009
The many fascinating legal and social issues swirling around "sexting"
I had a chance to read closely this federal complaint filed last week by the ACLU of Pennsylvania against a local district attorney who threatened three high school girls with child porn charges for appearing partially undressed in (provocative?) cell-phone pictures. The complaint details the remarkable ways in which the local DA exercised his prosecutorial discretion in response to a "sexting" problem in a local school, and it asserts that his actions violated both the kids' First Amendment expression rights and their parents' rights to control their children's upbringing.
This interesting complaint confirmed my sense that there are an array of fascinating legal and social issues surrounding the phenomenon of "sexting." And the Newark Star-Ledger had this effective article, headlined "A debate swirls over teens' lurid pictures: Should self-portraits draw harsh penalties?," highlighting that these issues are arising in many places in many different ways:
In Indiana, a middle-school boy faces obscenity charges for transmitting naked photos of himself to female classmates. And last week in Passaic County, authorities accused a 14-year-old Clifton girl of distributing child pornography, saying she posted nude portraits of herself on MySpace.
In a growing number of states, law enforcement agencies are cracking down on teens who use cell phones and social networking sites to share lurid photographs. Prosecutors say they are trying to stamp out a dangerous trend. But their use of stringent child-pornography and sex-offender laws has ignited a debate. "Do we really want to tag this 14-year-old girl as a sex offender for the next 30 years?" asked Bill Albert, spokesman for the National Campaign to Prevent Teen and Unplanned Pregnancy. "Communities nationwide are scratching their heads about what role, if any, law enforcement should play in these cases."
A key hurdle for prosecutors is that technology has outpaced the legal system. Most states don't have laws specifically addressing teens who transmit explicit images, a practice sometimes referred to as "sexting."
The only New Jersey laws applicable to the Clifton case are those designed for sexual predators and child pornography traffickers, said Parry Aftab, executive director of the nonprofit group WiredSafety.org. Authorities suspect the 14-year-old, arrested Tuesday, took and posted nearly 30 explicit images of herself for her boyfriend to see. If true, it makes for an unusual criminal case: The victim is also the perpetrator.
Any new or aspiring law professor might do well to start a sexting law and policy blog. The combination of issues here — involving juvenile sexuality and criminality, severe child porn laws, new technologies, legal uncertainty and prosecutorial discretion, and constitutional law — all but ensures that sexting topics will draw lots of legal and social attention for quite some time. Anyone who tracks major sexting cases and debates — and thus becomes an academic expert on these matters — likely will have their phone constantly ringing and an always full e-mail in-box.
March 30, 2009 at 09:47 AM | Permalink
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"If true, it makes for an unusual criminal case: The victim is also the perpetrator."
Well, that is not at all unusual in cases surrounding child sex whether that be child prostitution or child pornography. The problem is that it is utterly impossible as a practical matter to seperate the innocent from the not innocent. (Oh wait, if they are middle class American folks they are innocent and if they are poor girls trying to survive on the streets they are tossed in the slammer. Forgive me, I forgot I was in America for a second.)
Sarcasm aside, the very nature of what is called "grooming" the child is to get the child to willingly and willfully to participate in the acts. Because of this, there is no rational way to draw the line between innocent and non-innocent. People naturally claim that what they are doing is innocent; it doesn't mean that legally it is or should be. The most direct parallel is to spouse abuse. In many jurisdictions the DA can press charges even when the "victim" refuses to cooperate because the essence of the crime is one where the perp often has enormous control over the victim.
I want to make clear that I am actually in favor of tossing these laws entirely. But that's because in the tension between social freedom and control I side with freedom. But I agree with those who say there is no rational way to seperate the innocent from the non-innocent picture of a nude 14 year old. Either it's all innocent or it's all child porn. Take your pick.
Posted by: Daniel | Mar 30, 2009 11:51:25 AM
Recent research has shown that at least 20 percent of young people are engaging in "sexting." Daniel has pointed out an interesting legal conundrum in deciding how (and whether) such behavior should be dealt with by the legal system. And it's not just sexting. Other fairly common teenage behavior such as mooning or streaking that used to be dealt with by parents has been similarly criminalized. However, I think an equally relevant question is, why would we as a society want to saddle a huge proportion of our young people with criminal records and sex offender registration? It has always intrigued me that the US doesn't seem to have an effective way of answering questions like this. We bemoan the fact that it happens but shrug our shoulders and say, that's the law. What level of absurdity do we have to reach before people are willing to say, stop, that's wrong?
Posted by: disillusioned layman | Mar 30, 2009 12:45:48 PM
>>>Recent research has shown that at least 20 percent of young people are engaging in "sexting."
Was this "research" published in the "Journal of Making Things Up." Look, if were a real American you would have, at least, cited your source.
Everything else in your post is fairly obvious.
Posted by: S.cotus | Mar 30, 2009 5:01:10 PM
Here's a reliable source.
It looks like we'll need prisons for about 50% of the population before it's all said and done.
Posted by: George | Mar 30, 2009 7:43:56 PM
Thank you, George. I wasn't aware that I was writing a paper requiring citations. I personally think they're aiming for 100 percent (excluding the lawyers, of course). S.cotus (for those of you who were wondering, that stands for Supercilious Condescending Overbearing Twit Uttering Sophistry), I just read an AP story (not, to the best of my knowledge, made up) indicating that a federal judge issued a restraining order preventing the idiot prosecutor from filing felony charges against the three girls in Pennsylvania. Now that's a real American!
Posted by: disillusioned layman | Mar 30, 2009 8:59:06 PM
Nothing like a DA trying to put more people in jail. I seriously doubt that 33% of the country is sexting.
Of course, his definition of "sexting" includes "nude or semi-nude." This means that not only are most clothing clothes catalogs "sexts" but so are most law firm photos, as lawyers boldly display their epidermises.
Of course, the other question is "so what"? Is this really a threat to public safety?
Posted by: S.cotus | Mar 30, 2009 9:03:51 PM
That's 33 percent of teen boys, S.cotus, not 33 percent of the country. If you are going to demand careful analysis from the rest of us, kindly engage in it yourself. Sexting may not be a threat to public safety, but some DA's certainly are!
Posted by: disillusioned layman | Mar 30, 2009 9:18:25 PM
Passaic county has lots of crime that needs to be investigated and prosecuted. Unfortunately, this is not it.
Posted by: beth | Mar 30, 2009 10:21:13 PM
If anything good can come out of this "sexting" mess, perhaps it is that, with white, middle-class kids being targeted, the excesses of the criminal "justice" system can no longer be dismissed as an issue for blacks and other minorities which doesn't really need to concern the rest of us.
Posted by: disillusioned layman | Mar 31, 2009 8:04:00 AM
Where are the parents of the kids that are sexting. As a society, is it our job to create laws that prevent kids from doing things that the parents are responsible for.
Posted by: luv2bbq | Jan 11, 2010 12:34:43 PM
the youth of today has surrounded himself with a kind of culture which the libertine sexual relationship occurs normally and is part of a relationship in which is already being required to coexist in this way with your friend or partner, this to generated that our youth of today are Sexaholics
Posted by: teenage sexaholics | May 3, 2010 6:05:51 PM
There's no doubt about the relation between juvenile sexuality and criminality you're right.
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Thank you, George. I wasn't aware that I was writing a paper requiring citations. I personally think they're aiming for 100 percent (excluding the lawyers, of course)
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However, I think an equally relevant question is, why would we as a society want to saddle a huge proportion of our young people with criminal records and sex offender registration? It has always intrigued me that the US doesn't seem to have an effective way of answering questions like this.
Posted by: how to win at blackjack | Feb 10, 2011 9:22:35 AM
Because of this, there is no rational way to draw the line between innocent and non-innocent. People naturally claim that what they are doing is innocent; it doesn't mean that legally it is or should be. The most direct parallel is to spouse abuse. In many jurisdictions the DA can press charges even when the "victim" refuses to cooperate because the essence of the crime is one where the perp often has enormous control over the victim.
Posted by: roulette strategy | Feb 16, 2011 3:05:56 AM
I agree with the fact that's 33 percent of teen boys, S.cotus, not 33 percent of the country. If you are going to demand careful analysis from the rest of us, kindly engage in it yourself. Sexting may not be a threat to public safety, but some DA's certainly are!
Posted by: sports betting system | Feb 17, 2011 4:33:59 AM
This are the sites that brings money those days, to sad about this.
Posted by: local seo | Feb 18, 2011 4:14:40 AM
In Indiana, a middle-school boy faces obscenity charges for transmitting naked photos of himself to female classmates. And last week in Passaic County, authorities accused a 14-year-old Clifton girl of distributing child pornography, saying she posted nude portraits of herself on MySpace. .. well said !Ugly ..
Posted by: weight loss diet | Feb 18, 2011 8:21:13 AM
I think the problem is that law university and legal education doesn't address these issues of texting because it's a fairly new phenomenon. Technology is constantly evolving and as a result it's hard for the law to keep up with all the new innovations and complications thereof.
Posted by: Trident Online Degrees | Mar 16, 2011 12:19:54 PM
I think that the parents most stop this because these ladies gonna end up being mothers too soon, and very young.
for my, they most stop this because they are distributing child pornography
Posted by: Fire Detection | Apr 30, 2011 5:32:15 PM
i would love to do sexting, only thing is that im married lol
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I've read about sexting before but never done it. Interesting topic.
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Posted by: Retin | Sep 21, 2011 2:58:31 AM
I am also in favor of tossing these laws entirely. But that's because in the tension between social freedom and control I side with freedom. But I agree with those who say there is no rational way to seperate the innocent from the non-innocent picture of a nude 14 year old.
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