Court OKs child porn prosecution of minors distributing pictures of themselves
washingtonpost.com
washingtonpost.com
Your opponents in kiddie porn are two different sets of people: 1) the egregiously stupid, generally teenagers, who may or may not be malicious about it and 2) the horrifically competent and malicious who WILL find a way to exploit any loophole.
Group 2 is what makes child pornography laws so problematic. Anything you do to strengthen your ability to get Group 2 generally increases the collateral damage in Group 1.
This is exactly what "prosecutorial discretion" is supposed to be used for. Unfortunately, it seems that "prosecutorial discretion" is now mostly "scoring poltical points for election."
I'm always on the side of "convicting innocents is wrong" because I consider it a pure civil liberty issue subject to abuse.
However, you are going to have to defend against people doing a "damage amount" calculation. The malicious individuals are so vile and cause so much damage and exploitation while teenage sexting cases are generally sufficiently rare that the calculus probably doesn't come up in your favor.
In addition, I have see firsthand from a bystander position that prosecutors are generally pretty good about teen sexting. I watched as a prosecutor patiently explained to an idiot mother that if he managed to convict the boy in the sexting case, he was also paving the way to convict her daughter of exactly the same thing. So, she could go along, and both of the involved parties would get some relatively innocuous conviction that would go away for both when they became 18, or she could make a big fuss and both of them would be sex offender registrees (the DA was clearly going to uncover evidence of statutory rape along the way--the boy and girl were obviously having sex with each other).
The DA really didn't want the case to go very far. Of course, the DA involved didn't have to bow to religious nutcases to get elected.
The relatives of the mother finally browbeat her into submission, but it was unclear which way it was going to go for quite a while and it could have gone very badly for all parties involved.
Generally something stupid has to happen--posted to Facebook, being shared around at school, comes up in a divorce proceeding, found on phone while being searched, etc.--before a DA is going to bother getting involved.
What's next, outlawing anatomy textbooks? Prostituting people for baby photo's of their kids? That may sound silly, but the edge cases on this get complex. What happens if a kid texts a picture of a rash on their privates to their doctor?
PS: Remember with the current state of AI we could flag every single sexting photo ever posted. So, what your going have this minor conviction of a large percentage of teenagers...
I think that you mean "prosecuting" ;)
And yes, that's already common. Or at least, it was, when people still used film cameras.
If you get rid of the sex offender registry then the problems around the child pornography laws become far less acute.
Was it a crime? It might. be tempting to say no, but laws do exist as a deterrent.
Problem is, judges and police have yet to design an objective maturity test, so instead they use an age threshold, easy to test, objective but arbitrary.
Like the map is not the territory, the law is not a perfect match to our moral landscape. It works with constraints of fairness, neutrality and enforceability.
It is clear that there are couples for which some illegal relationships are actually harmless or even positive and done with mutual consent. It is also clear that some relationships are abusive and extremely dangerous.
The balancing between protection of the abused and individual freedom is easy to make: on one hand, you have children being raped, on the other hand, you have young lovers that may have to wait a few years before fucking. I would say the first goal has priority.
If we open the pandora box of consent under 18, we will have to tread very carefully.
You can't just assume teenagers will wait because they're told to. I don't think that's even remotely realistic. The law (any law) has to be written in a way that protects those who break it with no ill intent. There's nothing "easy" about child sex laws.
To demand that a horny 13 year old girl not fuck for half a decade to satisfy some arb moral code, is stupid.
Deciding that someone is both a rape victim and a rapist at the same time, for the same act, isn't an unfortunate sacrifice around the edge cases of heuristic reasoning. It's categorically insane.
States have typically balanced this against the desire to prohibit "relationships" with vast power differentials (i.e. between a child and a middle-aged adult) by carving out exceptions to statutory rape for consenting couples who are close in age. Others have just relied on police and prosecutors not to bring cases against teenage couples, and been mostly successful outside of a some newsworthy examples met with public outcry.
Where I'm from the age of consent is 15, but the law also explicitly states that there is no crime if the age difference is small. So in your example, if the two kids are fine with it, nothing would happen, not even if any of their parents were screaming bloody murder.
Were not exactly lacking blueprints of sane legislation in this area, or lacking datapoints on how different ages of consent affect different societies.
Why some places persist in prosecuting kids who have consensual sex with each other is just baffling to me.
There are traditionally two ways to do that and still make sure people who go to prison actually deserve it. The first is to draw the line high and rely on prosecutors to sensibly exercise their discretion, the second is to draw the line low enough that you don't find innocent people on the wrong side of it.
But prosecutors have repeatedly demonstrated a failure to exercise sensible discretion, leaving the second option as the only viable alternative.
In my country age of consent is 14. There is no pandora's box, there is no widespread abuse of teen girls and children being raped. Only ones who routinely have sex and get pregnant at that age are gypsy girls and that's because their "traditions" require them to marry young.
No, no, no. That's not how age of consent laws work, not even in parts of the US.
The main purpose of the age of consent is to define the difference between rape and child molestation. Both are illegal acts involving non-consensual sex, but the latter has a much stronger punishment, because society wants a larger deterrent for it. We think it's the worse crime.
The secondary effect is that it's easier for the person below the age of consent to be believed by the courts if that person claims the sex was non-consensual. Many regular rape cases unfortunately end in a he said/she said without much technical evidence, in which case there's no conviction. If an underage person is involved, society spends more resources on figuring out if a crime actually happened. This is good, because it adds to the deterrent.
In case of consensual sex between two people where both are below the age of consent or on different sides of it, it's obvious to me that society shouldn't pursue a criminal conviction. In the US, this is usually codified into age of consent laws as a "Romeo & Juliet clause", and other places usually have something similar.
There are of course parts of the US and the world where age of consent is high and there are no exemptions, because those places are neurotic about sex and want to impose some sort of morality on their teenagers. That's unfortunate, and I hope people oppose those laws.
> If we open the pandora box of consent under 18, we will have to tread very carefully.
What box? It's under 18 for large parts of the US. It's 14/15 in many places in Europe, and it has been that way for decades. There's plenty of facts if you want to measure the effects of different ages of consent.
Also, I believe that the average age of sexual debut is 17 in many parts of the US. To criminalize over half the teenage population is, to put it bluntly, fucking stupid. The laws of a society should reflect the morality of its citizens.
I see everyone's forgotten Jerry Lee Lewis and his (AFAIK perfectly legal at the time in that state) 13 year old wife. http://www.dailymail.co.uk/tvshowbiz/article-1021569/Great-B...
Now, we are rightly wiser in the 21st century and have almost entirely done away with child marriage. But I would say one key principle is believe the victim. Which cuts both ways. It makes no sense to pursue a life-ruining prosecution of a minor if the alleged victim claims (un-coerced) not to be a victim. There are plenty of nastier cases out there to spend scarce effort on.
Not to give people a blank cheque if they happen to be under 18, either: the treatment of unsolicited underage genital pics should be a lot more serious.
Conversely the long-unravelling scandal of UK entertainers abusing children comes from not believing the victims at the time, or constructing an environment in which they were met with extreme hostility for coming forward. This led to a "missing stair" environment, where lots of people suspected that Jimmy Savile was an abuser but he was able to get unsupervised access to children to abuse.
Laws where the victim is the offender are problematic in a way that enforcing the law when the victim doesn't always want the offender punished is not.
You cannot victimize yourself by taking a picture of yourself.
I think each situation need individual judgement, not a universal law.
No adult and no coercion — no case.
You cannot victimize yourself by sharing pics of your own self.
This isn't true in the least. Jaywalking and speeding can be done in a world with "population: 1", yet caught on camera would constitute a crime.
You're misusing the word crime here, despite me being very explicit about what I'm talking about.
The law does not determine crime-- morality determines that the law is criminal itself, as I've shown.
What I am in favor of is a different set of rules for minors self distributing. Possibly deferred adjudication and counseling first offense, ramping up from there. It is behavior that could cause trouble for the kid and possibly for others, can't just say "have at it!". But neither should it make one a registered sex offender with all that baggage.
Especially because it's been so horribly abused in the past. Take this case in Manassas, Virginia. 17 year old texts a picture of his penis to his 15 year old girlfriend. The police find out, charge the 17 year old with distributing child pornography, and take pictures of his penis saying they need it for evidence[1]. They then get a warrant from the courts demanding that the 17 year old send them a picture of his erect penis[2]. And if he didn't comply:
> If he doesn't cooperate, the Manassas City Police Department has threatened to take him to a hospital and medically induce an erection with an injection, attorney Jessica Harbeson Foster toldThe Washington Post.
Eventually they backed off when it received widespread attention in the press. Later it turned out that the detective in charge of the case was a pedophile[3]:
> A Manassas City police detective, who was the lead investigator in a controversial teen “sexting” case last year, shot and killed himself outside his home Tuesday morning as police tried to arrest him for allegedly molesting two boys he met while coaching youth hockey in Prince William County.
When I read stories like this, I'm at a loss for words. No one in the justice system realized how terrible this is? Not only does this show the problem with giving law enforcement this kind of power, but I think it shows that we really need some sort of public advocacy department to monitor and go after this sort of abuse (someone to watch the watchmen).
The kid in the case got probation, by the way.
[1] http://time.com/2971033/virginia-police-search-warrant-photo... [2] https://www.usatoday.com/story/news/nation/2014/07/09/virgin... [3] https://www.washingtonpost.com/local/public-safety/manassas-...
https://www.cbsnews.com/news/new-york-ends-child-marriage-ra...
It's akin to something that bothers me personally; when people refer to "America" when they mean "White America." Yes, the recent rise of the alt-right has put on display an undercurrent of discontent in America, but when you say that, you're not being specific in a way that is distorting.
In christianity - god is the father of all men - the pastor is refered to as "father" - the father is refered to as father
All of them are there to protect and all of them must be obeyed.
And it feels to me that the police are also a kind of father. They are also there to protect and they too must be obeyed.
I do see a technocracy as being a patriarchy as well. After all it's not just Xi, but Xi Dada: https://www.youtube.com/watch?v=PnRo9AMT8FI
And he too is there to protect and he too must be obeyed.
Edit: And this is what I hate about HN. I spent time thinking about and writing this post. And the more time you spend writing a comment on HN, the fewer people will read it.
Just think how oppressive the matriarchy of the beehive must be to those poor little princesses killed in their crib by the ascendant queen mother, not to mention armies of 'drones' working their ass off for the glory of their queen. Naturaly, and it is in fact true, those little princesses had to go bye bye for the greater good of the hive.
(& do we really want to discuss the "pedophile" matriarchs of the Bonobos .. :)
p.s. I simply can not relate to your notion of the police as father figures.
The connection here is that abusers make use of power structures to protect themselves from the consequences of abuse. This will happen with any sort of power structure; abusers are wily. But it's especially problematic with a power structure built on gender, because our sexual roles are also strongly gendered. That leads to behavior patterns like "old boys' club" and "boys will be boys", where men are more likely to trust other men, and to act in ways that support the people most like them.
So if we were coming out of a non-patriarchal past, we would still have abusers exploiting whatever the power structure was, but the patterns would be different.
The correct answer to this is always "Since legislation is freeform and you're writing it now anyway, maybe you should write that it should never be used that way into the legislation".
The idea that minors cannot consent is correct. Children are not a scaled small version of adults. They need to develop not just grow physically and children are vulnerable. We need to protect vulnerable members of our society. However, like with so many things in life, we've gone too far though. We need to scale back this stupidity be it "for the children" or "terrorism" or "drugs are bad".
There's a quote about doing the same thing and expecting different results which I can't remember off the top of my head but to me all of this: including the drama against marriage and abortion feels like bread and circus to get people occupied with silliness.
It's the definition of insanity.
The abortion topic is interesting because we're talking about how we socially define a human life in a realm where science can't help at all (or at least has failed to give a concrete answer thus far). If it was an accepted truth that human life begins at conception, then abortion is murder. Even our laws reflect that at a certain stage prior to a baby exiting the uterus the thing is, for all intents and peuposes, alive. I actually think using fuzzy privacy prose to defend the right to terminate something that may or may not be conscious or "human" is really a stretch.
Anyway for all the other stuff I agree: insane.
On top of that some people can't tolerate the most effective hormonal birth control methods methods.
Wait what? Reproduction is the default consequence of sex. That's basic biological fact. You can't legislate that away.
Hetero vaginal intercourse often doesn't result in procreation, and that's your best shot at it anyway.
There isn't really any universal default consequence, just like there isn't a universal sex act. A lot of people enjoy it, some people feel shame, etc. Life is a spectrum.
I know why you picked that latter bit - it makes a cool sound bite. But it's just wrong, and whatever 'biology' imposes on us, we as a society shouldn't look at those loose shackles and say, "yes, this is the way it must always be."
ALSO, reproduction is the default consequence of a specific kind of sex under certain conditions, it's not like it's a 100% guarantee. Treating it as such makes you sound like a Texas lawmaker's favorite textbook.
Basically it boils down to what intelligence level we're ok to kill. Those pro-lifers chewing that juicy steak can't be more oxymoronic and hypocritical.
We know when the body begins to develop (conception), but we're uncertain as to what sensory input is being processed, whether that program is aware of its own state, and such things may vary between individuals.
We have bright lines, but none that have sufficient agreement about their use in all cases for legal purposes.
The hard part is in forming the laws and deciding whether they should value undeveloped members of the homo sapiens genus for their species, for being intelligent, their capacity to suffer, or other reasons, then balancing whatever rights are assigned against the rights of others.
Those questions you pose is not really of scientific domain - they are actually equivalent reformulation of the religious question when/where "soul" is created (equivalence of the "soul" and "human" questions is established by the religious dogma that only humans have "soul"). Science has Cro-Magnons, Neanderthals, Australopithecus, etc... It is the question of religion domain whether Neanderthals or our common ancestors all the way to ancient apes were "humans"/"had soul". If notion of "soul" exists where did it appear between us and those cells $2B years ago to which each of us is connected through the continuous chain of bodies?
The entire abortion conversation is completely ruined by most people wearing glasses colored with existence bias.
So effectively yes, this is already the state of things, and there is no serious movement to restrict this form of post-birth abortion. Who would have imagined that all it would take for abortion to gain acceptance is to frame it as a religious liberty?
(correct answer: anyone who's lived in America)
That is false. Parents cannot legally deny their children life-saving treatment.
Also, I'm not sure where I am being hyperbolic. Peter Singer literally does advocate for the "right" to kill young children for a long time after their birth. So if you say that Peter Singer offers an "easy" moral approach to abortion, I have to ask whether you actually do agree with his logic and follow it to the same ultimate conclusions that he does.
While an interesting approach, I'm not sure I agree that the ability to suffer is enough of a definition of humanity to use in isolation. It also does not account for scenarios where one might be willing to suffer on behalf of another. In other words, I'm not sure there exists an absolute scale of suffering which we can use to judge the morality of such a scenario. Again, maybe I'm not familiar enough with this ethical framework.
https://en.wikipedia.org/wiki/Peter_Singer#Abortion.2C_eutha...
I'm not super expert about it either (at best a casual armchair philosopher), but from what I know Singers philosophy isn't specifically about suffering, it's about weighing interests. He assumes that the desire to avoid pain is one of the more important interests, hence it takes priority most (but not all) of the time. It's not black and white, it's more of a calculus about weighing the different competing interests of individuals, with certain classes of interests being given more weight than others.
I think Singers arguments in favor of abortion actually go farther than what OP's post implied regarding the fetus' capacity to feel pain. Singer argues that a fetus is unable to have any self-interests (including the desire to avoid pain), hence the interests of the mother should be given priority. I think this is taking it too far myself; I can agree with the delineation of the fetus' capacity to feel pain, but it is not clear to me at what point (if any) Singer feels it would be immoral to abort a fetus.
http://www.slate.com/articles/health_and_science/human_natur...
It is almost in the same line of thinking that infants are not capable of feeling pain and why some operations on them were done without anesthesia:
http://www.nytimes.com/1987/12/17/opinion/l-why-infant-surge...
I believe some operations on infants are still being done without it:
http://gizmodo.com/why-are-so-many-newborns-still-being-deni...
"to this day, many procedures are performed on newborns without the benefit of analgesics. That’s largely because of an enduring misconception in the medical community that newborns don’t feel pain like adults."
While that sentiment is certainly a part of medical history, there's a good reason why many procedures on infants are still carried out without anesthesia today. Infants are fragile and most forms of pain relief we use on adults are simply too dangerous for infants. Any anesthesiologist will weigh the benefits vs. the risks for each particular procedure and for infants that ratio is considerably different compared to adults.
"Key medical objections to infant anesthesia - that it was (a) unnecessary and (b) dangerous - were resolved by the brilliant research of Kanwal Anand and colleagues at Oxford from 1985 to 1987. Making precise measurements of infant reactions to surgery, they proved that the babies experienced pain, needed and tolerated anesthesia well, and had probably been dying of metabolic and endocrine shock following unanesthetized operations."
Source: http://www.nocirc.org/symposia/second/chamberlain.html
[1] http://www.webmd.com/parenting/baby/news/20120820/anesthesia...
[2] https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm364078.h...
I don't think anyone's seriously suggesting simply forgoing anesthesia in life threatening cases, but people might want to rethink a routine tonsillectomy or some dental work.
The statement was not about defining humanity. Why is it relevant if something is human or not? Would it be OK to torture non-human life that's clearly in possession of cautiousness just because it's not human?
Suffering has nothing to do with it, it's just a biological motivator for both parent and child to escape pre-reproduction death with insignificant side-effects like really, really missing a nice car or just an ice cream.
But while this topic is naturally highly dependent on "local" social rules, I think modern society should put responsibility and planning on the first place. If someone is not very sure that s/he can raise, care of, or simply enjoy the parenthood, it must be okay to abort it, unless that overweights all imaginable social programs. Like killing born children, for one. With modern society atomization and precision, abortion absolutely falls into "not your business" category in most places, unless one has very conservative and/or intrusive religious views, which is a bad thing itself, given how many completely different minds have to interact now on daily basis.
First, you use "murder" incorrectly. Abortion, in the US, is legal, and therefore not murder. Murder is defined as an illegal killing. That is why when someone is given the death penalty, they are said to be killed, not murdered. We say soldiers kill the enemy, not murder the enemy. By using "murder" you are adopting the conflation that anti-abortion activists have been (apparently) successful in promoting.
Second, nobody doubts that a zygote is alive. Nearly every cell in your body is alive (barring hair, nails, upper layers of skin, recently recycled cells), including sperm and eggs. When an egg and a sperm fuse, the result is also alive. The question is whether the rights of the zygote->blastula->fetus->baby trump the rights of the woman who is carrying it.
Obviously, by the time it becomes a baby, the baby's rights trump the desires of the woman carrying it, in general -- everybody agrees on that. Some people conceive (pun not intended) of the fertilized egg as being fully human, something God ordained and which is the vessel for a soul which has been waiting for that very zygote, and by aborting it, one is subverting God's will and destroying the intended future destiny of that soul.
Others don't share that belief. There is certainly no bright line dividing when that fetus is developed enough that its rights are superior to that of its mother, and deciding where to place that light should not be taken lightly and will cause discomfort. But we deal with such things all the time. It is legal to drive 45 MPH on the street near my house, but not 46. Yes it is somewhat arbitrary but not unreasonable either. That we have to make an uneasy boundary somewhere on the continuum isn't reason to declare that the speed limit should be zero, or that there should be no speed limit at all.
It should also be noted that at the time Roe v Wade was decided, Protestants and even evangelical Protestants by and large were not bothered by the decision. Catholics were, of course. It wasn't until the rise of the Moral Majority that the issue became objectionable to so many religious groups.
http://www.pewforum.org/fact-sheet/public-opinion-on-abortio...
70% of evangelicals are opposed, while 44% of Catholics are. From that you might conclude that since the majority of Catholics are not opposed to abortion that proves your case. That would be wrong. The church and those who oppose it are far more vocal and influential than those who support it.
Really, this topic is in the news all the time. I don't know how the religious connection has escaped you.
Do they? They are the ones who define the law after all.
As for dictators, they are violating international law. Abortion is legal in the US (withing certain parameters), and international law does not declare it to be illegal either.
International law primarily regards the interactions between nations rather than the actions within a nation. It is debatable whether or not a nation that is non-signatory to a treaty has violated a law when they fail to abide by its precepts.
I think most people would claim that murder is intrinsically wrong, and is not bad merely because it is contrary to some words on a piece of paper.
People can disagree as to what is unjustified; one person might consider a death in an arranged duel to be murder, while another might consider it justified. Under the law of today it is unlawful, under many laws 200 years ago it would be lawful.
However you could probably get someone fired or develop a bad rep.
It's like you're saying the rape doesn't count if nobody gets pregnant.
Depends: https://www.justice.gov/usao-co/pr/colorado-springs-man-car-...
Take a dead body, that could be murder( 1st degree, 2nd, 3rd), manslaughter or even a lawful killing (self defense). But as you will see in the link below even receiving a text can lead to conviction even if you receive it in error and report it.
[1]https://www.ussc.gov/sites/default/files/pdf/news/congressio...
Anyway, putting someone on a CP spam list, and then getting them busted, might well do it.
The first case is something that actually happened to a friend of mine. He was 23 and dating a 17 year old, got convicted, sent to prison, and is now labeled a sex offender for life.
Are there any countries out there that take a sane approach to this moral conundrum?
This is actually known (as to the USA). When the law was passed, pornography producers didn't have to keep records of their models. The goal of setting the legal threshold at 18 was to make it really, really easy to convince a jury that a model who was e.g. 12 was below the legal threshold. It wasn't expected that photos of 16-year-olds would be prevented, because if all you're going on is a photo, they aren't easy to distinguish from 18-year-olds.
Most of the rest of the world actually.
...or even a 17.997-year-old.
The problem is that the world is mostly continuous, not discrete, but laws try to be the latter.
The UK had a problem a few years ago when they accidentally deployed some 17 year olds to Iraq.
This means a judge can't use his/her discretion to forgive, imposing extra toughness on the accused, usually in absurd ways, such as 30 years in prison for stealing a doughnut because of 2 prior similar petty theft convictions. But a Wall Street type could abuse billions of dollars and go free. I think this kind of cookie cutter justice is perverse and just serves to wage social war and fill up prisons.
https://en.wikipedia.org/wiki/Age_of_consent
"Most jurisdictions have set a fixed age of consent" but also "Some jurisdictions have laws explicitly allowing sexual acts with minors under the age of consent if their partner is close in age to them."
> The search turned up cases of 12-year-old girls married in Alaska, Louisiana and South Carolina, while other states simply had categories of “14 and younger.”
Most states have no minimum age, though some have a minimum age between 14 and 17 (only two have a minimum age of 17 going by the map in the article).
[1] https://www.nytimes.com/2017/05/26/opinion/sunday/it-was-for...
California has some sanity about "statutory rape", which is what your friend almost certainly got nailed on. The number of years under 18 as well as the age difference can be taken into account, and that conviction could be reduced to a different misdemeanor. However, you need a GOOD lawyer to pull this off.
What third-world country would send someone to prison for dating a 17 year old? I doubt even Iran or some other theocracy would do that. Where was this?
https://news.vice.com/article/irans-government-is-worried-th...
https://en.wikipedia.org/wiki/Sex_offender_registry#Sex_offe...
And I'm not sure that any of them would put someone that pees in public in those registries
You're arguing that the grandfather would have broken the law regardless of it existing, and is therefore innocent. Or that because a child was born out of this relationship, and grew just fine, that it makes it ethical and permissible in the general case. We don't know what the grandfather would have done. Time length of the relationship doesn't matter, and people often remain in dysfunctional marriages to the detriment of their own children.
This doesn't mean your friend's grandparents are bad, but that it's just an anecdote from the past that doesn't prove the rule against modern ethics regarding age of consent.
If you look at neurological science, crime rates, and even car insurance rates then it's fairly easy to see that the brain has not fully matured by age 18 in most people.
Sure, a person's capacity for logic/reason has matured but usually that happens around 15 anyway. Inhibition of risky behavior and thus the ability to make sound decisions definitely has not.
A more sane legal adult age would probably be around 25 but then how would we justify enlisting legal 'children' in the military?
Depends on whether maturity is reached 25 years after birth, or 7 years after you start to make your own decisions.
Perhaps the age of majority ought to be changed, perhaps the placement of all convicted on the registry ought to be lifted, perhaps the record ought to be sealed if good behavior can be maintained for X number of years, but these are all "oughts".
Write to your legislators and put your morality into law if you want to see changes. Don't ask judges to use their discretion and open the door to widespread Brock Turner justice.
I absolutely agree that you have a right to control the influences in your kids' lives (to some extent, at least). But why do you need to involve the law in this way?
Say your daughter receives a lewd photo from an underage male. Now she's in possession of child porn (whether she wanted the photo or not) and could end up on a sex offender registry for life. How is that sane?
And the guy who sent her the picture is "trafficking in child pornography"? C'mon. That's ridiculous.
Many of these crimes are on the book with "strict liability"; that is, the mere fact of existence or possession triggers culpability, and intent doesn't enter into the equation.
I think the better model is in places where the age of consent is at some reasonable age below the age of majority (no, I don't have a good definition for "reasonable", but that doesn't mean we shouldn't try), as it is in many places. There are no legal ramifications of sexual behavior down to that age, but parents are, as always, free to set limits and impose consequences if they aren't obeyed.
That seems excessive. And it's hard for me to empathize with any parent who thinks that's ok.
The most widely ratified human rights convention, the UNCRC, defines a child as someone under 18.
While the US doesn't ratify those conventions (because constitution) they do try to put them into law. That means they enact a mish-mash of bits and pieces, and leave out quite a lot.
England does a reasonable job here. We have the law (The Sexual Offences Act 2003 covers photographs of children), and we have prosecution advice (which covers things like whether it's in the "public interest" to prosecute.) The sexual offences act has some protections for people who are over 18 but who have a vulnerability impdeding choice (eg, a learning disability) or who are in a weird power dynamic (eg university lecturers).
There are also differences in law between someone under 13 (where it's assumed the alleged offender knew they were under age) and someone between 13 and 16/18 where the crown has to prove the alleged offender knew they were under age.
English law is a bit complicated because the age of consent for sexual activity is 16. It is weird that you can fuck a 17 year old, but you can't have naked photos of that same person. There's a narrow exemption in law for possessing images for people who are under 18 and married.
Here's the sexual offences act: https://www.legislation.gov.uk/ukpga/2003/42/contents
Here's the Crown Prosecution Service guidance: http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/...
Almost all of them? Heck, 23-17? I don't even see the conundrum at all.
You are conflating two concepts that aren't relevant.
1) Dating and age of sexual consent have nothing to do with the legal rationale behind child pornography prohibitions.
2) Depictions of nudity of subjects under 18 do not run afoul of child pornography prohibitions (of course, contingent on if you can afford your rights all the way past appeals court)
The age in 2) is typically standardized by the federal government, and they just let people consent to contracts to exploit themselves at the age they can consent to any other contract.
It goes without saying civil and criminal child abuse, neglect, and abondonment cases are as difficult as any to stomach. But there are famous case of parents with "bathtub" framed photos of their kids on their hallway walls and grandfathers with pictures of their grandchilds running through sprinklers, and as you might imagine they were painted as the devil incarnate.
Our law clinic was very aware the issues of text messaging even then, 2006. At the time we used the Socratic method to debate the logic and human aspects of charging the young children guilty of originating "sext messages" of themselves. My position was always that such a law would chill the indemnity a victim needs to come forward.
One of the major issues is that many of these crimes are under the strict liability [2] standard meaning if the pictures exist, the defendant is guilty, notwithstanding their intent.
[1] https://en.m.wikipedia.org/wiki/Statutory_rape#Romeo_and_Jul...
So no mistake about this guy. The bigger question is if it was intended to be received by the adult, are they both guilty? Or just the adult at that point?
It seems to me the biggest hinge with this case is that the recipient didn't want the pic and actually called the cops herself.
Would be much more satisfying if they would have charged and proven that he assaulted the woman and just stuck with that.
The courts are saying there must be a legislative fix. What's the chance they actually fix it?
We should really cover this sort of thing under the existing indecent exposure laws.
But hey, having fun is immoral.
I think at that point, you're likely to be involuntarily committed anyway :)
> one has committed a crime or not depends entirely on the other party will decide at some point in the future
That is already true. In many crimes you need to press charges, and sometimes you can even request the charges to be dropped.
Think about a simple case: a coworker slaps you. Is that an assault? Depends on the exact details and on your relationship with him.
Washington SC: "He claims any potential harm in his case is just as attenuated and vague as Free Speech Coalition. Because no harm was done, he should have the same right as any adult to take voluntary photographs of his own body. We do not find this argument persuasive."
Am I correct in reading this as the court basically saying "The defendant presents a solid argument. We don't care." ??
fortunately most people don't report it
minefield out there
also, stop sending dick pics to women
Congrats, two 17 year olds sending pictures of themselves consentually = child porn.
What I also couldn't understand from the article:
A picture of someone who is an adult, but is /pretending/ to be a minor is also child pornography?
What?!
Pornhub.com will need to take a hard look at some of its content providers then.
Or does it not apply to Montreal based companies?
What if the servers are in the US? What if the client is in the US?
Lunacy.
"Pretending to be a minor" would have 1st amendment protections as per previous cases.
Thank you for clarifying.
Is it me or was this densely worded?
https://arstechnica.com/tech-policy/2017/09/teen-sends-dick-... is more readable, probably.
Mods might want to update the link?
But, from the OP:
>> The case itself involved a 17-year-old sending “an unsolicited picture of his erect penis” to an apparently unwilling recipient, but the logic of the court’s reasoning applies even when the recipient is pleased to receive the photo. The court does say that, “because [Gray] was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation,” but I think that — given the logic of the majority opinion — the analysis would have to end up the same way; nothing in the majority’s reasoning turns on the presence of an unwilling recipient.
And that being said, one must imagine how differently the case might have been handled had the genders of the involved persons been switched.
Same reason that minors usually get a break from the law when committing vandalism, assault, etc.
So they should not get the same exact punishment, which is why I suggested counseling because unnecessary institutionalization of children is a predatory method of creating repeat offenders.
It's like that episode of Seinfeld where they learn a sex offender moved into the neighborhood and went to confront the person, then found out it was a woman and immediately (and somehow understandably) lost their vitriol.
"However, the Court found the prohibition of images that appear to be, but are not actually, minors improper"
They found the prohibition to be improper. It's oddly phrased.
>In Free Speech Coalition, the Supreme Court struck down a law that banned sexually explicit depictions of minors, as well as depictions that appeared to be minors. These included computer generated images and depictions of legal adults pretending to be minors. The Court recognized that the First Amendment “does not embrace certain categories of speech, including … pornography produced with real children.” However, the Court found the prohibition of images that appear to be, but are not actually, minors improper; any harm stemming from those false images “does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts."
Unless I'm reading it wrong.
However there are such laws which remain, and in fact have been recently introduced, in Canada, England & Wales, Northern Ireland, Rep. of Ireland, New Zealand, Australia, and various European countries.
What's perhaps even more concerning is that even stories are illegal in Canada. The mere possession of the material, i.e a drawing that you made yourself is illegal in England. Publishing a story or even sexual roleplaying with another adult over the Internet might find you sentenced under the Obscene Publications Act.
It's hideous in my view and such laws deserve to be stricken down with ferocity.
I'm sure I've replied to you about this before, actually, not long ago. (Edit: found it https://news.ycombinator.com/item?id=14904716)
I'm not sure why my comment here is downvoted, though.
Your bbc example is telling: he's an admitted paedophile, who was offending against children. The OPA isn't new law, it's very old law.
> He admitted at Preston Crown Court to storing hundreds of child abuse images and posting on a paedophile website.
Wrong about what, exactly? Images of children in sexual situations, or rather, as is described in the act, is illegal even to possess. Unless you know something about the act that I don't, or I've completely misread it - in which case I'm very open to corrections - I'm an optimist that the law isn't as hideous as I am reading it out to be.
>The OPA isn't new law, it's very old law.
I was talking about that section of CAJA, I know that OPA is old, but the "lolicon law" is only from 2009.
>he's an admitted paedophile
So what? That's completely irrelevant to any point that's being made. The fact is that he was imprisoned for spreading stories, fiction, and it was through UK law enacted by parliament that this happened.
http://www.abc.net.au/news/2008-12-08/fake-simpsons-cartoon-...
>Justice Adams said the legislation's main purpose was to combat the direct sexual exploitation and abuse of children that occurs where offensive images of real children are made.
If he believes this, then why is he legislating that virtual pornography, in fact even hand drawn, of the Simpsons which bear such little resemblance to real people, never mind actually existing people, is against the law?
>But, he said, it was also calculated to deter production of other material, including cartoons, which "can fuel demand for material that does involve the abuse of children".
Was it really? And if so, does he, or the authors of the legislation, have evidence to back up this claim? This seems to be totally unsubstantiated nonsense this judge is saying. And what of fueled demand? The fact that a drawing or story might make someone else do an action is, in my view (and I hope others can agree) not reasonable grounds for illegalising possession or production of that drawing.
Unfortunately bone-headed cases and legislation like this have graced the rest of the Commonwealth and various European countries.
Just utterly amazing. Hentai is now child porn. How many hentai pictures are stored on Tarsnap??!
Those images might be stored on US servers. Time for you to grant a "backdoor" to the government.
If I was in your position, I would be genuinely confused when trying to juggle all of these regulatory threat matrices :( :(
It reminds me of the situation right now with the guy in Philadelphia who is in prison for contempt for not offering decryption password to the judge.
What is strange is how today's puritanism is coming from the left rather than the right.
Growing up as kid, I remember christians and conservatives attacking "Married with Children", "Simpsons", "Beavis and Butthead", "Southpark", etc. Even as an elementary kid, I remember associating christians/conservatives with censorship and for most of my life identified myself as a liberal.
The past few years, I've given up on liberals too as they are now pushing their form of censorship under the aegis of "social justice".
> Congrats, two 17 year olds sending pictures of themselves consentually = child porn.
It's even worse that isn't it? If a 17 year old takes a picture of herself on a smartphone and sends it to herself on her other accounts, then she's guilty of distributing child porn. Technically, isn't she guilty of distributing child porn of herself to herself?
At this point, if they spend time going after people for that type of technicality, then it's only a matter of time before they get all of us in prison for something.
70m people in the USA have a criminal record of some kind.
The more victimless crimes we have, the more power we will lose.
From both actually, take the UK for example, the anime=CP law was made under a right-wing government.
Of course, coercion is still illegal, and coercion of a minor would carry higher criminal penalties. But distribution of content does not automatically imply coercion or violence.
But sentencing somebody to prison for looking at cp is akin to sending gay people to prison.
Whatever one's opinion may be, it's pretty difficult to arrive at solid conclusions if the premise is such a sweeping assumption.
It's a complete miscarriage of justice: throwing a minor in jail, using a law supposedly created to protect minors. It could only be more cynical if they tried them as an adult–I didn't check, for fear of what I may discover.
A majority of housing is no felon. Work is damn tough, and people get paid bottom dollar. In some places you can't vote.
A lot of activities prohibit felons too. Being a coach, for example, isn't a walk in the park.
And your traffic stops? Ugh.
I know this due to a friend stuck with one. Hanging with the wrong people, group case. First offense. It's pretty brutal.
In many States expungement isn't possible on many felony crimes either. Someone who got the message, living right, can't escape it despite the clear reform.
And if you think felons have a hard time getting a job...
https://www.theguardian.com/lifeandstyle/2015/may/03/owning-...
We need to improve on all of this somehow. It's too much in way too many scenarios to make sense. And the problem is when it's all appropriate.
Work to be done here. A lot of it.
Given how persuasive this argument is, I am a bit surprised that the court was not persuaded. I understand that Ashcroft v. Free Speech Coalition has some distinguishing factors, like the fact that the depictions in question were clearly distinguishable from records of a crime (on account of them not being photographic images of actual minors).
This is a messy and complicated business, it seems like there needs to be a legislative solution since the supreme court can not find what most people consider a just outcome in an interpretation of the statute.
At an interview "so I googled you... what's this about the Supreme Court having a ruling over your dick pic, brah"
Better start his own business or get to flipping them burgz.
I'm very lucky and I have some wonderful children I cannot see them going out and doing something like this however people do stupid things. I don't think charging someone with something that is going to stick with them for the rest of their life for something that they did when they were 13 ,14, 17 years old.. they are kids and their brains, hello all you scientists out of there, are not even fully developed.
Listen, if a 17-year-old child sent an explicit image to my daughter I would be over at the parents house faster than you can imagine. That kid obviously needs a swift kick in the ass, he or she does not deserve to be charged with a crime will follow that person for life.
If we continue to charge children as adults, kids that are 13,14,15 or 17, then we might as well change the age of when you are an adult to 13 years old.
has anyone given any consideration to the crap that these kids are bombarded with on a moment by moment basis on television in music and all entertainment, it is hyper sexualized. What do you expect your children to do when they are faced with this?
The sad situation and I don't agree with the stupid thing that this kid did in the stupid things the kids are going to do but they are kids! Come on now, haven't we seen cases recently where adult pedophiles have been let off? Are we going mad?
Somehow these age limits sound contrasting each other.
So what, in a decade or so, an appreciable percentage of young people will be labeled as child pornographers?
It's not noble to take responsibility for things when you have no control over them and thus won't be able to fix them.
The "we" wording sweeps all these limitations of democracy comprehensively under the rug: it diverts blame onto the people when it should rightly be directed at the existing political order.