Ridiculous Child Pornography Laws

(By Andrew MacKie-Mason)

The scope of child pornography laws in the United States has become ridiculous. Prosecutors have used the laws to label young adults as "sex offenders" because they send naked pictures of themselves to significant others.

As the New York Times breaks it down, there are two main categories of sexually explicit picture messages. (Aside: no, I will not call it 'sexting.' Partially because that word is ridiculous, and partially because it is impossible, by definition, to have a sexually explicit picture in a text message.)

There are two basic scenarios. In one, a teenager shares a nude picture, usually with a romantic partner. In the other, a partner, or more commonly an ex-partner, distributes the image.

I would rework it into the following categories:

• A person voluntarily sends (or has someone else send) a sexually explicit picture of him or herself to others.
• A person sends a sexually explicit picture of someone else without that person's permission.

In both cases, the correct 'solution' (if one believes there is a problem in the first situation at all) is clear. Where the transmission of the image is voluntary or with the consent of the people in the picture, no one has committed a crime. If society believes such actions are wrong or dangerous, it should try to educate them (through their parents or through a school) or not allow them to access the relevant technology until they are mature enough to deal with it.

If, however, the picture is distributed without the consent of the person in the photo, a crime has been committed and a victim created. However, I see little reason to differentiate between the picture of a teen and the picture of an adult, other than treating age as an aggravating factor that could increase the possible sentence. The crime is sending a naked picture of another person without their permission, not that that person is a young adult below the age of majority.

Some people may argue that the consent rule will still expose young adults to exploitation by older people. The mental power that the older person has over the younger may remove the younger's ability to consent properly. If that happened, though, it wouldn't fall under the proposed consent exception, since the victim cannot be considered to have properly given consent.

The idea of "ages of consent" (both for sexually explicit images and sexual intercourse itself) is an admirable one, in that we (society, that is) wouldn't want to make prosecutors work hard to convict people. They do enough for us already, and it's clearly easier to just have a magic age than to ask prosecutors and juries to actually think and find that distinction between a couple on either side of that magic age, and an authority figure using his or her power to remove the younger person's ability to make informed consent.

A one-size-fits-all criminal justice system costs less. But can we really say that it is more "efficient" when it leads to so many ridiculous miscarriages of justice?