The logic behind treating "sexting" teens as child pornographers | Hacker News Reader

The logic behind treating "sexting" teens as child pornographers

reason.com

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What I find particularly disturbing is the normal emotional and sexual relationships from my own teenage years (just so we're clear: dating people my own age when I was a teen) is now seen as a crime. If the clock was turned back and I was suddenly 16 years old in 2010, i'd be scared just to have a girlfriend. What if her parents charged me with a sex crime because they caught us making out? I feel pretty bad for kids today for having to grow up in a culture of fear, confusion and repression.

Where I am. the law on the age of consent contains a strong exemption for cases where the age difference is small. The age of consent is 15, but if a 15yo and a 14yo have sex and are fine with it, their parents can scream their lungs out, the police will immediately dismiss it. Because our lawmakers remembered the purpose of the law: To stop adults from having sex with children, not to stop teenagers from having sex with each other.

This is also something I've wondered about the US legal system, how much extra information is written into law? Where I am, in Sweden, which uses a different legal system, most laws come with instructions for how to interpret it. Does this exist in the US? Or is this built up by judges?

Here, laws are written by legislation, and interpreted by judges. As judges rule on different laws, the laws build up a case history. This is why becoming a lawyer in the US (especially if you want to be a trial lawyer) is so onerous. Not only do you need to be very familiar with the laws themselves - you have to be very familiar with how the laws have been interpreted since enactment.

Is there one single repository that links each law to cases that have referenced or interpreted it?

AFAIK, no. There are the Westlaw and Lexis-Nexis databases, but I'm not sure if even they can be called completely authoritative.

(And access to them is certainly not free.)

The implications are a bit disturbing. Paid access to those databases combined with case law means that if you are poor then you won't have full information about what can get you jailed.

Yep.

Even if you are rich, case law alone is so onerously large that perusing it and studying it would take a lifetime. I spent about ten minutes trying to find out just how large the corpus of case law is, and could find no references.

Score one for the little guy, though: Google Scholar indexes (some; not sure how much of the corpus is covered) case law, as of Nov. 17, '09: http://googleblog.blogspot.com/2009/11/finding-laws-that-gov...

It is highly variable. I don't know anything about child pornography law, but I can safely assume that it was written at a time that could not anticipate the production of content by teenagers themselves.

I clearly think that the cases listed are absurd. It is the Supreme Court's correct role to recast or reinterpret laws -- if necessary -- given recent applications.

>> "at a time that could not anticipate the production of content by teenagers themselves."

At what point in the history of the universe did teenagers and kids not naturally play around with each other :/

Never, but they didn't commonly transmit evidence of it before the last decade.

Well, other than the occasional pregnancy. :P

It does bring up the question: did anyone ever get prosecuted for underage sex based on a pregnancy? I mean, there isn't much better evidence of said sex...

Even in cases where the law states that it's illegal for a 18yo to have sex with a 17yo, it's still up to the prosecutor to be sane about it. That doesn't always happen.

When the girl is pregnant, she still has to give up the father for them to know who to prosecute (traditionally the boy is prosecuted in these cases; sometimes they go for the girl if she is the older one, but if she is pregnant they may view her as the 'victim'). I guess she may give that information up when declaring who the father is to the hospital though, so I don't know. Maybe it just depends on how vindictive the parents are.

The key word there is content. It has only been in the past half-decade that tens of millions of children have had ready access to the means to produce and distribute pornography of themselves. The law enshrines certain assumptions that are no longer true due to the proliferation of technology. Undoubtedly that will be an increasingly common occurrence.

We've had cameras for centuries and home movies for a couple of generations but until recently, the act of recording something was seen as deliberate and permanent.

Now, photos and videos are a part of our day to day lives, an extension of our own thoughts and social interactions. That change is colliding with the historical concept of producing media for consumption (it's also colliding with technical reality, but that's a whole other issue).

The conflict arises not simply from the availability of technology but from the level of intimacy we have with it.

Adults have had those things, it's only recently that it's become common for children to own them as well.

If recently you mean 30+ years ago. Many teens had (cheap) cameras in the later 1970s. Some even Polaroid cameras that didn't need processing.

If by many you mean a very small minority then sure, it was hardly common for kids to have cameras; today nearly every teen has one in their phone.

When I was in high school I was informed (and I remember because it was relevant at the time) that our councilors were legally obligated to report sexual activity only if any participant was 15 or under or if one was a minor and another was not.

It was rather silly that a lot of students had a window of a few months during their senior year when their relationship could result in criminal charges, but before or after that it was fine.

It's even better when you consider, for example, a senior dating a junior starting from when they were both 15 <-> 18. Today, happy couple. Tomorrow, criminal sex offender. All that changed was a few hours went by.

Most consent laws are by the states, and many are fairly rational about it. The biggest problem is the Federal "child pornography" laws.

That may be true, but you should understand that most of these extreme cases of teen prosecution occur in some of the most conservative of US states. That should come as no surprise to anyone.

If the clock was turned back and I was suddenly 16 years old in 2010

Maybe if someone in your family made a point of freaking you out about it, but for the most part I don't think most 16-year olds are concerning themselves with this issue, they're just not wired that way. By comparison all I do at my age (31) is worry.

Well, the consequences for a 31-year-old dating a 16-year-old are a lot worse.

I was speaking about my state of mind at the age of 16 and these new cases of teens being prosecuted for their otherwise normal relationships. I'm not saying I would stop trying to get girls (who could stop a teenage boy from chasing girls?) but it would inspire fear in me whenever I was anywhere near an adult or authority figure with my SO.

It also doesn't take a lot for media hype and rumors to appear as facts to a young person and have an effect on their state of mind. I dread a future where young adults feel these cases are uncontroversial.

Kids are used to adults meddling in their affairs. It's not like the criminal charges involved with narcotics trafficking stopped the drug trade among teens. You think laws about underage sex, something that is kept a secret from adults in the first place, is going to change anything?

http://www.ageofconsent.com/ageofconsent.htm

Not necessarily up to date.

The best line "The message to minors: These photos can ruin your lives, kids. And just to prove it, we're going to ruin your lives."

Similar approach to teens and drugs appears periodically.

I love how, all these years later, we're still destroying the village to save the village.

This is just stupid; essentially they are making a judgement on child sexuality and trying to force kids into a chaste society.

As someone who struggled with intimacy and other issues in my teens (aka the kind of environment these people are trying to foster) and I can tell you now: it's incredibly damaging

This is just knee-jerk reaction to a few people's distaste at overt sexuality in minors. It's damaging to the campaign against those who really are abusing minors.

My theory is that the people with "distaste at overt sexuality in minors" are actually just uncomfortable with their own sexuality.

For example, this Skumanick guy sees young girls at the beach in bikinis and is uncomfortable with the fact that he's sexually attracted to them. To me this is just part of our biology and it's not a big deal. But this guy is so insecure that he goes on a mission to make it be known that he does not approve of this behavior because to him the thoughts he's having about the girls at the beach are impure. He even goes so far as to say he's able to prosecute minors in bikinis at the beach.

It's the same sort of situation with the article's reference to Mark Foley.

In other words, he is the kind of pervert he is trying to stop.

It's funny to think that, but I think it's more that the guy is just insecure.

Do kids prosecuted and convicted under these laws have to register as sex offenders? If so... that is just awful. I mean, official reprimands, even going to court over something racy is not cool, but a lifelong stigma over something mostly harmless?

Also wouldn't that reduce the meaningfulness of the sex offender registry when a large portion of the people are 'just on it cuz I got caught having sex when I was 17'.

Yes. Here's an example: http://www.cnn.com/2009/CRIME/04/07/sexting.busts/index.html

And here's another:

http://jwz.livejournal.com/1158388.html?thread=21451764#t214...

That personal story was in response to a story about sex workers in New Orleans being added to the sex offenders register for oral sex.

http://jwz.livejournal.com/1158388.html

Thanks for the links! (also, thanks for the link to the parent post)

Yes, they generally have to register.

We need to just do away with sex offender registries entirely. Not only are they unjust, but they're impractical: they're mostly made up of innocent people who upset their SO's parents as teenagers.

I'm not sure that that's true. There's plenty of rapists, child molesters, etc on them. We shouldn't put people on there for sexting or having sex with their signifcant other who is only a year or so younger, but we shouldn't prosecute them at all.

Though the registries do have the issue of leading to discrimination against the sex offenders and not giving people much of a 2nd chance.

If someone, as a mother of a child, has the right to know that a sex offender lives in her neighborhood, then I, as the owner of some expensive things, have the right to know that a burglar lives in my neighborhood.

Well yeah, at the end I admitted that there are other reasons to do away with the registries.

But the premise that we should get rid of the registries because they're mostly stupid teens that were victims of these stupid laws is just wrong. The solution to that is to stop prosecuting kids with laws never meant to be used on them.

You're right, there are a lot of better reasons to ban those registries.

What baffles me about these cases is the hypocrisy of the position the courts are taking on it. They say that minors aren't able to consent to creating indecent images of themselves; that's a fairly decent position in and of itself. However, they then say that they're committing an adult crime by doing so. You can't have it both ways -- either they're minors or they're adults. If they're minors, they can't legally create these images but they can't be tried as adults for it either; if they're adults, they could be tried for it but there's no crime there. Pick a side and stick with it.

I guess it's indeed true that the definition of "indecent" is "whatever arouses a judge"... Or a District Attorney in the cases pointed by the article.

If isn't about protecting children any more, what is it about? My 2 cents: It's just a witch-hunt, you know, like in the middle ages.

Or like the Red Scare in the 1950s.

Or like the Satanic ritual abuse witch-hunt in the 1980s.

Or like any number of other moral panics:

http://en.wikipedia.org/wiki/Moral_panic

Yup, that's basically it. Moral panic + DAs striving for reelection = mob justice

Don't forget the war on terror.

Apart from the question of photographs of teen nudity, how can they be prosecuted for being photographed in a bra? Is there really a law against that kind of thing? Or for appearing "coy" - soon the only way to be save is to only go outside hidden behind a veil?

That's difficult - because it depends on the classification of "indecent". Which is subjective.

There are usually a few levels of "indecent image". Here in the UK we use the Copine scale which has 5 levels. Level 1 includes non/semi nudes but in an overtly sexual pose OR nudes but in a non-sexual pose.

Im not sure of the exact classification system used in the states but I think they do it similarly. The difference here is that if you only have a few level 1 images then you wont get prosecuted - i.e. these people wouldn't be prosecuted here. (based on that I am assuming that the US system is a bit more lenient about what is classed as indecent)

> based on that I am assuming that the US system is a bit more lenient about what is classed as indecent

It's basically up to however draconian a judge, jury or prosecutor wants it to be. If a girl baking cookies in a short skirt is 'indecent' to someone in that list, then you might just get successfully prosecuted for it. It's really insane.

[EDIT] The system was supposedly designed with its original intent being to protect victims (child abusers, and to a lesser extent child porn consumers in a bid to choke off demand for child porn). Now it's basically become a vehicle whose aim is to punish you if your get off on something that they don't like, or do something that they don't like (where 'they' is someone in that list above). If a judge has a stick up his ass about teens being 'immoral' then he may just throw the book at teens that are brought to his court for 'sexting' just to satisfy his urge to punish someone for it.

Hmm that is insane. It is a subjective thing - but here it is considered expert testimony. Therefore it is up to an expert to grade the images and present the findings to the court (of course the jury can judge the images for themselves).

I know it is similar in some parts of the US - but I guess not everywhere :(

Might I recommend a title change? s/logic/boneheaded logic/

Currently reads as if the article is advocating treating them as sex offenders.

(wording taken from article's deck)

The terms tongue-in-cheek and irony come to mind...

The terms 'intonation' and 'non-verbal cues' also come to mind. Specifically the lack there'of ;)

Just add 'scare quotes' around logic and it changes the intonation.

Oh, come on! Do we have to be so deliberate?

I wasn't sure, so I erred on the safe side of caution.

Does anyone have an opposing point of view? Granted it's difficult, given how the article presents the points, but I'd be interested to hear from people satisfied with how the law—or maybe just parts of it—is behaving in these cases.

You should re-calibrate your sense of "in other words". You had an interesting question until you lumped a broad category of people, including many minors, into the loaded word "pedophile". Your last question is not a re-statement of the previous question. It adds assumptions and associations that overwhelm the reasonableness of the first question.

I'm at a loss to rephrase the problem part in an appropriate way so I removed it. Ask the second question yourself if you can and wish to.

I'll bite:

There have now been several cases across the country where young people who either pose for, snap, or forward provocative or nude photos of other minors are being charged or threatened with felony child pornography.

In the case of forwarding provocative or nude photos, I can see situations where that could be done with malicious intent and really harm someone. Depending upon the details of the case, I would be okay with throwing the book at someone for distributing photos that were never intended to be made public and which caused significant harm. I have heard of a case of Internet harassment that led to suicide or murder. So I think potential for real harm should not be laughed off entirely.

Nonetheless, most of what I have read about teen sexting cases sounds completely insane.

"They've been introduced to the criminal justice system merely for appearing in them."

Thank god the legal system has finally figured that out! The true criminals that need punishment are none other than the victims. Fingers crossed this will set a precedent, and murder victims will finally get the punishment they deserve.

That'll teach 'em not to get exploited.

Alright, own up - who left the stupid tap on? We're knee-deep in stupid!

I hate to be That Guy... but this really isn't Hacker News.

Why don't you discuss it over on reddit: http://www.reddit.com/r/reddit.com/comments/au2vm/these_sext...

Then don't be that guy.

It's Hacker News if your cloud app is suddenly carrying what courts would consider child porn because your under-17 demographic is upping nude pics of themselves to it.

Apparently nudity is not even required anymore for images to be considered child porn, so you're not even safe if you aggressively remove all images that most people would consider inappropriate. From what I can tell, there really is no unambiguous line, and that's disturbing, because there's no way to keep a site "sanitized" against this sort of thing.

The upside is that I don't think there have yet been child porn charges brought against web service owners for things that their users have uploaded, since it's usually against the terms of service to upload such things and courts realize that owners of a web service can't be expected to police every piece of user-uploaded content.

And FWIW, I find this very appropriate for Hacker News: it is a disturbing legal trend specifically caused by people's reactions to new technologies, and you can bet that the people responsible for this push would love nothing more than to spread this type of thing to the Internet. I don't think we should be too concerned that they'll succeed, because most normal people see the lunacy in all of this, but it's still worth keeping an eye on.

I thought the article was very giving, well written and raised a very disturbing issue in today's society. There's some good discussion going already. Why do you want to throw it away so badly? Because the topic doesn't fit your image of hacker news?

This is absolutely Hacker News. Hackers are all about unjust justice.

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