With Protecters Like This Who Needs Predators: Teen Charged For Creating Child Porn Of Herself

Posted on March 28, 2009

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A fourteen year-old girl has been charged for creating and distributing child pornography of — wait for it — herself. She posted nearly thirty explicit nude pictures on MySpace. Moreover, if the charges stick, she could be forced to register as a sex offender. Also, it seems prosecutors all over the U.S. are pursuing child pornography cases which involve children sending nude photos to one another over mobile phones and email. Click here for the full story.

To be fair to law enforcement officials, practically-speaking, investigating the MySpace photos and the crack-down on kids sending nude pictures to each other makes total sense. After all, adult child-pornographers could use teens as fronts for their distribution networks, if law enforcement simply ignore child to child file sharing. So, from this perspective, it may seem like they need to charge the child with some offense to investigate the situation properly and to help convince the child to turn-over the adult child-pornographer — if there is one. In the same way you charge the prostitute to get the pimp, maybe you need need to charge the victim of child pornography to get the real culprit.

Even so, on my view, charging the child of an offense is unjust. If person A is insufficiently competent to consent legally to sexual activity or to participate in pornography, how can she be sufficiently competent to be held criminally responsible for creating and distributing pornographic images of herself. In U.S. law, only obscene forms of expression — relative to a particular community’s standards — are illegal. It seems also, from the little bit of research I’ve done, that there must be some kind of obscene intent in its production — that is, it is smut for smut’s sake, and not a part of some other acceptable objective (a coming of age story, perhaps). Is a child really in the position to know and understand what a community’s obscenity standards are?

This question becomes even more relevant when it seems the adults responsible for enforcing these laws don’t really seem to know those standards either. In a separate incident, Wyoming County district attorney George Skumanick Jr. is trying to force two girls into a five-week after-school program and put them on probation because they were involved in the production and distribution of images he presumably takes to be lewd or obscene. In fact, he has indicated that his office could have filed charges against the girls, including “sexual abuse of children in Pennsylvania, criminal [use] of a communications facility, or open lewdness,” What happened? The girls had their pictures taken in their bras and they were distributed over mobile phones without their consent. For details, click here

The crux of problem with this trend of charging children for the crime of making and distributing child pornography is that it comes at a time when popular culture is hyper-sexualizing adolescents and also routinely rewards celebrities for putting their own sexuality on display. Ultimately, these are just kids playing “doctor” (or “celebutante”) who also happen to have access to the means of world wide electronic distribution. If minors can experiment with their sexuality with other minors without criminal penalty, presumably they should go criminally unpunished if they also happen to create and distribute images of that activity. As one thoughtful commentator suggested, the kids would probably feel much more punished if their punishment was to take away their mobile phones and internet access. Being charged with a “criminal” act, which they have no reason to understand fully, will not likely count as much of a learning moment. 

Notice also, on this understanding of the situation, adults who come into possession of child pornography created by children will have no right to claim immunity from prosecution because it was created by children. After all, an adult is rightly presumed to understand that community standards always judge sexually explicitly images of children to be obscene and, therefore, illegal. 

Of course, if this conclusion is true, it still leaves open the possibility of adult exploitation. Don’t law enforcement workers need some kind of leverage to properly investigate potentially criminal pornographic images of children?  Of course, but charging a child with an unjust law — even if only to force him or her to reveal the identity of an adult exploiter — is itself exploitation. Remember, the whole point of these laws is to prevent exploitation. Exploitation done in the name of rooting out exploitation is still exploitation and, when it comes to children, it is rightly prohibited and always avoided. That’s why these laws exist — or that’s why they should exist — in the first place.

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