You’ve probably seen a lot of media coverage lately around the phenomenon of teenagers sending nude or otherwise sexual pictures of themselves to each other, and the fact that a lot of parents, and more notably law enforcement officials, are really freaking out about it.

It wasn’t so long ago that I wrote about an outrageous case where a 15-year-old was arrested on child pornography charges for taking nude photographs of herself.  But these types of stories have since really taken off; and they’re even calling it “sexting” now, because what would a story about teenagers and sex be without more ways to make it inappropriately tantalizing?

Of course, the media seems to be taking notice not to talk about how girls are being exploited by law enforcement, and often the (usually) boys who they sent the photos to, but about how girls are Teh Slutty for taking pictures of themselves, and how poor boys are being punished for getting caught up in Teh Slutty themselves.  Like here at CNN, and in Thomas’ response to the article at the Yes Means Yes blog:

This article is not perfect, but it makes two really good points: First, that this is wildly and willfully excessive.

Should Phillip be punished? Yes. Should the six teens in Pennsylvania face consequences? Yes. But let’s kick them off cheerleading squads and sports teams. Make them do community service and take classes on sex crimes. Educate other teens on the dangers of sexting. Pay a price, yes, but these young people shouldn’t pay for this for the rest of their lives.

Second, that this ought to be a wake-up call that teen sexuality will develop, and that parents have a responsibility to shape it, which they cannot do by ignoring it

Now, what Thomas does here, again, is not new.  In the original article I wrote about, this issue also came up — the case of a girl taking photos of herself was compared with a case of a boy spreading photos of an ex-girlfriend without her consent.  And, in fact, he’s only agreeing with someone else presenting the problem.  So I could be accused of picking on Thomas here, but this upsets me precisely because I like Thomas, and because he wrote a really intelligent, much longer post on this topic recently.

This most recent post, on the other hand, totally misses the mark.  As Elizabeth says about a different but similar article: “it treats teens sending revealing pictures of themselves and teens sending revealing pictures of others without permission as if they were equivalent acts.”  And they’re fucking not.

In the CNN article, Phillip Alpert, an 18-year-old who shared pictures of his ex-girlfriend as revenge after a break-up and was convicted on child porn charges, is compared to three girls who sent pictures of their own volition to three boys, all of whom are charged with child pornography.

Do we not see the problem here?

Let me spell it out:  the problem is that the pictures are being treated as the problem.  And they’re not.  Whatever personal qualms you may have, there is nothing morally wrong, nor should there be anything illegal, about sending sexual pictures of yourself to another person so long as you’re doing so willingly, even if you’re underage.  There is, however, something gravely wrong with distributing sexual pictures of another person without their permission.

These are two radically different cases.  Six teenagers engaged in consensual sexual behavior that authorities disapproved of.  And one boy engaged in non-consensual sexual behavior.  But they’re being treated like the same damn thing.

No one, in fact, seems to care about the fact that there is a girl in Alpert’s case who had her trust an autonomy violated.  They just care a) that the dirty pictures exist in the first place and b) a boy’s life is ruined as a result of his own goddamn behavior.

We can debate whether or not Alpert’s actual punishment is appropriate.  Should he have been convicted of a felony for his actions?  Should he be forced to register as a sex offender?  Though again, I don’t think that the pictures themselves were the problem and the charges are therefore probably off, I’m not particularly interested in that at the moment.

I’m interested in the fact that CNN’s Mike Galanos seems to think that he only deserves to be kicked off of the school’s sports team (even though he now a legal adult).  And that the six teens who engaged in consensual behavior deserve exactly the same.  I’m interested in the fact that these two acts are being equated, and the fact that they are equated is probably precisely why there are so few laws out there to combat what Alpert actually did wrong.

And I’m interested in the fact that Thomas agrees that this is a wake-up call to parents regarding “teen’s sexuality.”  No, it should be a wake-up call to parents that their sons (and daughters — but primarily sons) may also engage in non-consensual sexual behavior and that they need to do something to stop it.  Not to stop their daughters from taking pictures of themselves because those boys just can’t help themselves, but to stop their sons from being abusive, misogynistic pieces of shit.  To equate what Alpert did with “teen sexuality” is not only belittling to teens who are expressing their sexuality in consensual and healthy ways, but offensive to all teenage boys, the majority of whom are not behaving like Alpert.

If I had a teenage son and a teenage daughter, I know which one I’d be most concerned about talking to.  And the fact that most of this country, at least if media representation is any indication, has the opposite answer tells us a whole lot about the kind of apologist rape culture we live in.

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{ 43 comments }

1 Renee April 9, 2009 at 9:14 am

I have been following the teen sextexting cases and it seems to me that they are already invested in slut shaming the young girls involved. One in particular with a 12 year old in her bra was called over the top by the media. Hello you would not have seen more flesh had she been wearing a bathing suit it was the fact that it was a bra that drove the oh noez dirty sex people crazy.

2 Thomas MacAulay Millar April 9, 2009 at 9:39 am

I agree entirely, and I should have been more clear:

(1) teens taking photos of themselves, and sharing them consensually with age appropriate partners in non-coercive contexts is basically just sexual activity among teens, which parents and prosecutors ought to treat it as such.

(2) nonconsensual sending of others’ images, whatever their ages, is abuse, and ought to be treated as such.

3 Thomas MacAulay Millar April 9, 2009 at 10:14 am

Cara, I thought this was important enough to get its own post.

4 James April 9, 2009 at 10:46 am

A rigorous, fair and compassionate analysis, in an area where all those are rare attributes!

5 golublog April 9, 2009 at 3:49 pm

I wrote about this a month ago when the slate article came out. It seems like mothers everywhere are frenzied about sexting. All though I feel like the girls know what they are doing and aren’t complete victims. I also think it’s very sad when girls send out these pictures and then they get passed around the schools. In the internet age, nothing you do is safe. However, the sad thing is it’s not the people spreading the images that get demonized but the girl who thought she was just sending it to their boyfriend.

6 Julian April 9, 2009 at 4:45 pm

In response to Thomas, Cara, and others here…
Thomas wrote above:

“(1) teens taking photos of themselves, and sharing them consensually with age appropriate partners in non-coercive contexts is basically just sexual activity among teens, which parents and prosecutors ought to treat it as such.

(2) nonconsensual sending of others’ images, whatever their ages, is abuse, and ought to be treated as such.”

I strongly disagree with statement #1, and feel it is a very irresponsible and dangerous thing to say.

I agree with all the main points of your post, Cara–we have to be careful what we are equating with what: (predominantly) heterosexual male abuse of girls’ privacy and personhood, and/or the pornographisation of such images, which of course can then be photoshopped seemlessly to be far more explicit, is not “the same act” as girls sharing images of themselves for fun.

But pictures are never just pictures. They are more than that. They always have been. And teens or adolescents who are now taking them is not the same as my generation taking polaroids of ourselves and showing them to one another. The technology is entirely different, and the means of photography, duplication, and distribution are radically different.

When I was young, if someone took a photo of me, or if I took one of myself, and showed it to others, there were limited ways that could be mass produced or mass distributed, outside my friendship circle, especially if it was a polaroid, or if I possessed the negative.

With cell phones and webcams, there is no such thing as “reasonable privacy”. The images are available, regardless of what the wishes are of the photographer or the photographed young person, to adults, including to many who do not know them at all.

And the pictures are evidence of something, even if that something is one’s momentary wish to self-objectify for the sake of amusing or arousing oneself or others.

The dominant culture is now so thoroughly pornographised as to make sexual self-objectification and disregard for personal privacy commonplace. This needs to be critiqued. The public posting of just about every detail of our lives, including images of ourselves at various ages, needs to be evaluated and responded to.

The harm that comes from snapping a polaroid is not the same as taking an image of oneself with a webcam or cell phone. These are entirely different acts, because they are entirely different media. The consequences, therefore, are necessarily different for the teens or adolescents, at least potentially so. The impact on their lives is necessarily different. For some, maybe for many, they will grow up and not give a sh*t that they ever took those photos.

But what of those who took them when drunk, high, pressured by peers, or by someone else when asleep, but posed as if the image was taken by the person in the shot? What about those who took and take pornographised or “merely” objectifying images of ourselves because we are survivors of sexual abuse, and think “this really captures who I am”?

These and other questions are forefront in my mind when the topic of “sexting” comes up. And, yes, any boy (or girl) who transmits images to others in a medium where any adult with similar technology and know-how can obtain a copy of it, is guilty of distributing child pornography, depending on the content of the image.

I agree that we, as a society, need to ask in what ways underage people who send images of themselves digitally should be responded to by their care-givers and law enforcement.

This much we know: there are countries where the age of consent is below what it is in the U.S. In many countries the age of consent ranges from sixteen to twelve. In those countries the sending of such images of adolescents and/or teens may not be criminal at all, for many reasons, regardless of how they are generated and regardless of who distributes them. But those images, just like the ones girls send to one another for a laugh, or to their boyfriend or girlfriend for a thrill, do end up in the sights of misopedic abusers. They are then used to coerce children into “posing like s/he is”. In my view, we can’t ignore this part of the reality.

In the old days, economically privileged men traveled to other places where they could purchase the [child] pornography, or have sex with people under the age of sixteen. Needless to say, Western white men, among others, doing this now in ways that are overtly abusive of children is not uncommon. But now they can send their abuses in live streams and still images to networks of predators in one second flat.

7 Cara April 9, 2009 at 4:53 pm

With cell phones and webcams, there is no such thing as “reasonable privacy”.

To the contrary, Julian; I think that is the highly dangerous statement.

Someone could take a Polaroid and photocopy it, make flier and spread them all over town. Different technology; vastly similar result.

What about those who took and take pornographised or “merely” objectifying images of ourselves because we are survivors of sexual abuse, and think “this really captures who I am”?

What are you even trying to suggest here? That survivors of sexual abuse have no agency? That because I was raped, any sexual photos I take would have to be inherently coercive or abusive?

In those countries the sending of such images of adolescents and/or teens may not be criminal at all, for many reasons, regardless of how they are generated and regardless of who distributes them. But those images, just like the ones girls send to one another for a laugh, or to their boyfriend or girlfriend for a thrill, do end up in the sights of misopedic abusers. They are then used to coerce children into “posing like s/he is”. In my view, we can’t ignore this part of the reality.

My boyfriend used “everyone else is doing it” to get me to stop fighting back while he raped me. Should we ban sex, too?

8 Angus Johnston April 9, 2009 at 5:11 pm

Julian writes this:

The dominant culture is now so thoroughly pornographised as to make sexual self-objectification and disregard for personal privacy commonplace. This needs to be critiqued.

…three sentences after he writes this:

With cell phones and webcams, there is no such thing as “reasonable privacy”.

So which is it, Julian? Do we need to critique those who disregard personal privacy, or climb on board their bandwagon?

Yes, as a practical matter, it’s easier to violate someone’s privacy if you’ve got a digital image of them than if you’ve just got an analog image. But that doesn’t make the expectation of privacy in the one case any less reasonable than it is in the other. I don’t have any less right to privacy in a personal email than I do in a handwritten letter. It’s not any less reasonable for me to expect my friends and acquaintances to respect my privacy rights in the digital world than anywhere else.

The line between consent and violation doesn’t get blurrier when technology makes violation easier to effect. If anything, the technological change impels us to greater clarity and greater vigilance at the border between the two.

9 She-cago April 9, 2009 at 8:09 pm

Thanks for the great post! You’re totally right, that is the point that everybody is missing… sad…

10 Julian April 10, 2009 at 1:47 pm

Hi Cara.

My point is not about the way things should be. It is about the way things are. Digital technology affords none of us “reasonable privacy” and, in my opinion, to promote the idea that it does is to be in denial about how these media work and operate in the real world, where there are “security breaches” every week, at least, and much more going on that is never reported about; I include here the number of photos taken of girls and women, including the practice of “up-skirting” where men violate women, often without the women’s knowledge. Photocopying and hand-distributing Polaroids was one of several ways my generation had to photographically degrade, humiliate, and abuse girls. That such sexual objectification and public humiliation (harm) by boys and men of girls could also happen then non-digitally, in no way makes things safe now. It only means things weren’t safe then either. I see no danger in alerting people to the fact that if we use digital media, particularly the Internet, cell phones, and webcams, we have no reason to expect the sort of privacy two or more people have in a room to themselves without that technology. This is not meant to function as an argument “for privacy” exactly. Privacy is what allows most perpetration to happen, most incest, most child molestation, most rape, most battery. I mean to put forth a simple caution, a reminder, of what is happening now, due to digital media’s proliferation.

I wrote: What about those who took and take pornographised or “merely” objectifying images of ourselves because we are survivors of sexual abuse, and think “this really captures who I am”?
You responded: What are you even trying to suggest here? That survivors of sexual abuse have no agency? That because I was raped, any sexual photos I take would have to be inherently coercive or abusive?

That’s not what I’m suggesting, Cara. What I am trying to express, however poorly, is that as a survivor of childhood sexual abuse, I believed, for quite some time my core value was in being sexually objectified, and this led to me behave in ways I now wish I hadn’t, and can now see as destructive to my own tenuous self-worth. That some survivors act out self-destructively, including by portraying ourselves as “things to be used” by others, is not taking any agency away from anyone, that I can see. It is stating a fact, a consequence, for some, well known, admitted to by many, including Oprah, that this is what happens to some of us who are sexually abused in childhood. We act out in ways that are harmful to us. Many of us did or do so compulsively. Acknowledging this as a part of what can happen to us isn’t denying me or any survivor agency. It is simply noting what happens. Some girls want to be in beauty pageants at age eight. They have agency. And they live in a world which manipulates all of us to think “Hey, that’s a cool idea!”. That we live in a profoundly coercive environment, when not also overtly forceful and aggressive, is, for me, an undeniable reality. And I saw how those who were not willing to look at that reality could more easily get caught up in “what everyone was doing” without considering the long-term or short-term effects on their humanity. Agency tells us nothing about the lack of freedom in which we live. For me, agency means I can act in some way, not necessarily in ways that I would act were I not living in a white heteromale supremacist society. I cannot choose, for example, to not feel shame about being gay, at times. I cannot choose to act as if I don’t live in a country which is racist and misogynist to the core. As I understand it, we all negotiate this political terrain using whatever levels of agency we have, but that doesn’t mean all acts of agency are wise, humanising, constructive, or healthy. Just ask any of my relatives who have been smoking, eating processed food, and watch junk TV. To focus on individual agency is to take the focus off the fact that powerful industries supply us with what we consume. Am I taking away their agency to suggest that there is such a thing as a vicious tobacco industry that knowingly gets young people hooked on cigarettes? How am I taking away anyone’s agency by pointing out that pornographers, pimps, and CEOs of other dehumanising media are getting rich while working–and exploiting others–to make our systematic social and personal dehumanisation seem sexy, valuable, necessary, or cool?

You wrote: My boyfriend used “everyone else is doing it” to get me to stop fighting back while he raped me. Should we ban sex, too?

That boyfriend should face appropriate consequences for raping you. As far as I’m concerned, someone should shoot the fucker in the head, yesterday. And if he thought his rape of you was “sex”–and I have little doubt many rapists do–how do we get from there to “banning sex”? How is sex banned? What is effectively “banned”, if looked at one way, is the possibility of children not being sexually abused. What is banned is the possibility that children acting out that abuse in compulsive and destructive ways doesn’t shape what sex is for many of us. What is banned is the possibility of no boyfriend ever thinking rape is sex. What is banned is the social untangling of domination from eroticism. For me the question is this: what are we going to do about those bans? Fighting to make those absences known is not banning anything. It’s adding, at least in text or conversation, the possibility of things being radically different than they are, meaning more humane and less exploitive, less sexist and less racist.

Who has the power to ban anything like “sex”? Not me. It is not even clear to me what “sex” is. As MacKinnon once noted, sex is whatever a society sexualises. So rape is sex, for the rapist. And teens taking and sharing pics of one another is “sex” if that’s the sensation and feeling and connection it generates. Men sending each other live video streams of their sexual abuse of young children is “sex” for those men. Obviously there are different levels of harm involved. But I’m not going to say that objectifying oneself for fun or to experience sexual arousal is a “social good”. And me stating that has nothing whatsoever to do with banning anything.

I neither legislate laws, direct public policy, or control major media. I have no control whatsoever on those who have the power to ban things. I blog and post comments. Why does blog discussion about a topic equal “wanting to ban it”? If I critique pornographers and pimps and their impact on broader social behavior, that in no way means I wish to have pornography banned. And even if I did, so what? I could also wish there was no global warming. I wish that there was a ban on poverty, on racism, on misogyny. Now what have I accomplished in speaking those words? A ban. No. I’ve only created more speech, and possibly, occasionally, further opened up a conversation in which more speech can happen. As a respecter of anarchist and militant approaches to social change, however, I do not think it will be “speech acts” or conversation that will be sufficient to radically alter Western Civilisation to become more humane and less ecocidal. I recommend reading Endgame (volumes 1 and 2), by Derrick Jensen, for more on this.

11 Cara April 10, 2009 at 2:13 pm

Who has the power to ban anything like “sex”? Not me.

Oh for fuck’s sake. That was precisely the point. We can’t ban consensual sexual behavior, however damaging you personally might think it is. And that seemed to be precisely what you were suggesting in your comment referring to teens taking and sharing photographs.

If I misread it, then fine.

Oh, it also must be said now that dudes telling me how they wish violent death on my rapist in order to illustrate to me how bad they think that rape is, especially when my point wasn’t quite about that, really just gets on my last nerve. I can wish violent death just fine on my own, thank you very much. I’d much rather you just engage in the point directly — the point being that an awful lot of the time, the means through which rape culture is reinforced is not the problem and is not in any way inherently evil. Rape culture just uses whatever it can gets its hands on, twists it and fucks it up and uses it to make excuses.

Rape culture uses consensual sex to promote rape. It uses alcohol. It uses drugs. It uses porn. It uses short skirts. It uses all kinds of things.

And I do not personally think that any of those things are inherently evil.

12 Julian April 10, 2009 at 2:23 pm

Hello Agnes.

You asked: So which is it, Julian? Do we need to critique those who disregard personal privacy, or climb on board their bandwagon?

I believe we ought to be challenging the social enforcers of society that fail to be humane in any number of ways, including by mass-producing–and selling to a manipulated consumer base–instruments that take away our ability to have privacy in ways that are meaningful to us. And obviously those of us who “buy into” the necessity and value of the technology have differing values about what constitutes reasonable privacy.

I challenge the actions of those empowered who make society one where what I would call “meaningful privacy” is a technological impossibility.

Digital technology makes any notion I have of my understanding of meaningful “privacy” go POOF. I face this, head on, and figure out what choices I now have. Increasingly, we have fewer that allow for something called privacy. With digital technology, the effects of a simple act are multiplied ad infinitum, whether due to the wishes of the unethical photographer, or due to the image moving into cyberspaces over which ethical photographer and consenter to be photographed have no control. This is digital reality. The taking of a single photograph can become many unimagined things, as noted above to Cara. Given that, what does my “consent” to have my picture taken mean I’m consenting to? I think it means I don’t know what I’m consenting to isn’t exactly the issue; the issue is what happens because of an action that is beyond the wishes of those initially involved. Is my consent to be photographed still meaningful? Maybe. But if there are consequences to me saying “yes” that impact a whole class of people negatively, ought I not consider that, before I agree to have the picture taken?

13 Angus Johnston April 10, 2009 at 4:59 pm

Julian, a reasonable expectation of privacy doesn’t mean that you can assume that what you do will be kept private. It means you have a right to demand that it will be kept private, and that you have a right to pursue redress if it isn’t.

That’s what the concept of a reasonable expectation of privacy means in the legal and ethical context, and it’s a concept we shouldn’t be hand-waving away.

14 Joe April 11, 2009 at 10:08 am

Now i usually don’t like a lot of the feminism that i see through the StumbleUpon button but this is different. You’ve really his the nail on the head it which problems to address here. I guess it could all be summed up with how all kids will be stupid, so make them pay for it, *but only while they’re kids.*

15 OuyangDan April 12, 2009 at 2:12 am

Wow, Cara. You said so many things right here I don’t even know where I would begin to comment.

16 Math Chique April 12, 2009 at 12:21 pm

Great article, great point.

I thought the story, about the girls being charged, was CRAZY.

You make a clear point of who is the victim in the two different scenarios.

17 Rebecca April 12, 2009 at 12:52 pm

Wow, I’m glad I stumbled upon this entry. I’m the mother of two teen daughters and honestly, we’ve talked more about this issue then just the good old fashioned birds and the bee’s topic. It’s an issue at both my daughters schools.
Reading this just makes it that much easier for me to point out even worse consequenses that can be had for sexting……
Rebecca

18 el211 April 13, 2009 at 1:52 pm

Did anybody here ever hear about the Horace Mann case, in which an eighth-grade girl sent a video of herself masturbating to a senior (with whom she had no relationship), who showed it to his friends, and ended up unpunished while the girl was expelled from school and forced to watch the video with her parents? This would have been five or so years ago. I’m not sure if it was a New York City private school urban legend – does anyone know?

19 Lily April 13, 2009 at 2:45 pm

“…there is nothing morally wrong, nor should there be anything illegal, about sending sexual pictures of yourself to another person so long as you’re doing so willingly, even if you’re underage…”

I strongly disagree with this statement. Exploitation is not necessarily done without consent. If, for instance, a six-year-old was asked by a family friend to photograph him/herself naked and did so willingly, this would still be viewed as exploitative (and rightly so). The issue here is that these teenagers are being treated simultaneously as children in the sense that they are too young to consent (like the six-year-old), and as adults who are responsible for knowingly exploiting children (like the family friend).

20 Ilia April 14, 2009 at 5:02 pm

Excellent post, thank you so much for voicing what has been brewing in my mind for so long!!!

There is so much wrong with the way many people look at laws, legality of things, and the concept of crime in principle nowadays.

21 Ellen April 16, 2009 at 12:04 am

Well written article!

I’d like to add some perspective as a girl who has participated in teen “sexting”. My former boyfriend talked me into sending him naked pictures of myself several months ago, even though I was reluctant and knew it was a bad idea. Luckily we were both 18 at the time and he deleted the pictures from his phone so there were no negative repercussions. It ended up being the falling out point in our relationship when he asked for more pictures and I accused him of exploiting me.

I am not an irresponsible kid, nor a slut. I’m modest, principled, and next month I will be graduating from my high school with high honors. I guess my point is that even though it was a dumb thing for me to do (I certainly regret it), it was an easy mistake to make. I caved under pressure. I certainly feel that “sexting” is in the normal realm of teen sexuality and curiosity. Labeling it as a criminal offense is absolutely ridiculous. This is an issue that should be dealt with among families and school officials, not courts.

22 Cara April 16, 2009 at 7:46 am

I am not an irresponsible kid, nor a slut.

Please, can we not use the word “slut” non-ironically on a feminist blog? Thanks.

23 Dida April 17, 2009 at 11:04 pm

Cara, you are missing the point as well. Obviously you are right there is no MORAL comparison between what the boy and what the girl has done. Some of the rest, however, is silly:

“I’m interested in the fact that these two acts are being equated, and the fact that they are equated is probably precisely why there are so few laws out there to combat what Alpert actually did wrong.”

WRONG! And wrong in a substantial, relevant manner.

All states have laws to combat what he did. In Florida, two useful statutes are CHILD ABUSE and HARASSMENT. Both clearly apply and there are likely several other statutes he could have been slapped with.

The fact is those who prosecuted him did not give a FLYING FUCK ABOUT THE VICTIM. That’s why he was charged ONLY with child pornography.

If they were still in love and she asked him to send the pictures back to her because she accidentally erased them, he would be EQUALLY GUILTY of what he was actually CONVICTED. The reason he will be a SEX OFFENDER most of his life has NOTHING to do with his INTENTIONS and with the lack of her PERMISSION.

It is NAIVE to imply that what prosecution did was caused by lack of applicable laws. The OPPOSITE is true — the prosecution INSULTED the victim by IGNORING the truly relevant statutes and by applying the very statute that inevitably makes the victim an offender as well and has ZERO to do with the real reason she is a VICTIM.

24 Denis Drew April 18, 2009 at 8:31 am

Possible First Amendment protection for teen “sexters?”

The justification for not protecting child pornography under the First Amendment is that it is necessary to take prurient advantage of a child to make the picture. Hand drawn or computer generated child porn is not illegal (unless they use a live child for an artist’s subject I suppose) – one thinks movie scenes in “The Glitter Dome.”

A sexting teen who transmits her own is not being taken advantage of by an adult or anyone else. If she sends nude pictures to an 80 year old her part in the transaction might very well be protected under the First Amendment – once the first principles of the scenario are considered. Ditto for her side of sexting to a friend.

There is an outside chance a child possessing such the “sext” should be considered to be taking prurient advantage of a minor under the First Amendment (depending on which generation of judges gets hold of it maybe) – but does it make sense to make a teen boyfriend — who may even have made legal sexual contact with the girl — the equivalent of an adult who possesses child pornography?

The free speech crossover seems to be when boys distribute nude pictures of girls among themselves without the girls permission – certainly not free speech. But to begin with no child was hurt making the image. The kind of personal damage to a child making pornographic images may be much more devastating than that of having the image passed around (again, once thinks of “The Glitter Dome”) – at least most of the time.

Wouldn’t we feel more comfortable with law that punishes such a gross invasion of privacy in a case for case damage way – not rounding up dozens of students and plastering them all with sex offender status and heavy jail time – but treating the offense as the privacy offense it really is?

25 Cara April 18, 2009 at 8:46 am

All states have laws to combat what he did. In Florida, two useful statutes are CHILD ABUSE and HARASSMENT. Both clearly apply and there are likely several other statutes he could have been slapped with.

Child abuse charges have the exact same problem as the charges already made — they treat the victim’s age as the problem, not the lack of consent. Harassment is a lot closer, at least if we’re talking specifically about sexual harassment, since by its nature sexual harassment is done without consent. But the fact remains that I’d still like to see something on the books that specifically deals with the spreading of sexual images and videos without consent, and barring underage pornography laws, I’m unsure that there are many out there.

That said, if there are, I’d love to hear about them and would absolutely agree that they were applicable in this case and that the prosecution explicitly ignored them.

26 Cara April 18, 2009 at 8:47 am

Denis — um, yes, I think that those of us who made an extraordinarily similar argument in the post would in fact feel more comfortable with that.

27 Dida April 20, 2009 at 2:32 am

Cara, in CHILD ABUSE the lack of consent would be crucial for proving the abuse. In CHILD PORNOGRAPHY the question of consent is mute.

You’re right in that with adults it may be less easy to apply laws like harrasment in such cases and that prosecution often does not even try. But please make sure not to inadvertanly seem to excuse the LEGAL TERROR by the MORAL FUNDAMENTALISTS against kids and young people.

Note that the girl herself is broke the law by manufacturing and distributing child pornography — and for all we know she too was convicted, but as a juvenile, so it is not public.

And if she was convicted, she will have to admit the felonies until she is 24 anytime she applies for college/loans/jobs/rent etc. Even after that these felonies will keep her out of any job near children (even school janitor work), elderly (pretty much anything in medicine), law enforcement, etc. for the REST OF HER LIFE. Few people in Florida know this.

28 Anna April 20, 2009 at 5:38 am

Cara, in CHILD ABUSE the lack of consent would be crucial for proving the abuse.

^I don’t get it. If it’s a child there’s automatically no consent. kids can’t give consent.

29 Cara April 20, 2009 at 8:03 am

Cara, in CHILD ABUSE the lack of consent would be crucial for proving the abuse. In CHILD PORNOGRAPHY the question of consent is mute.

Um, no? In a case of beating a child, you don’t have to prove in court that the child didn’t say “okay, Mom, hit me!” The same with sexual abuse. If someone is below the age of consent, that legally counts as abuse.

But we’re talking here about teens who are in many cases above the age of sexual consent with adults. And even when we’re not, I do not believe that there is a problem with a 14-year-old being sexual with another 14-year-old, so long as that sexual activity is practiced safely and consensually. So again, I do not believe that we are talking about an age issue.

And frankly the rest of your comment just confuses me, as it seems to argue against me in a way that just reiterates the points I’ve made a million times. Prosecuting these cases as crimes because of the victim’s age sets up situations where victims can also be tried. That is fucked up. Which is why we shouldn’t be prosecuting this using age-related statutes.

30 Dida April 20, 2009 at 11:05 am

Anna, it is untrue that children cannot give consent. In most jurisdictions, for example, children of certain age CAN consent to have sex.

Furthermore, when it comes to most crimes, CONSENT of even a 5-year-old can be crucial. If you beg on the street and *order* a 5-year-old to give you a dollar, and the child, visibly scared and crying, gives it to you, you might end up being convicted of robbery and even child abuse. But if the 5-year-old comes to you with a dollar clearly intending to help you, it is not criminal to accept (although you might have to return the money if her parents ask you to do so).

Saying that kids can’t give consent because in SOME cases they can’t give LEGAL consent would equally apply to adults. In no jurisdiction I know of can you come to an adult, ask “Can I shoot you dead?” and, if she says Yes, shoot her dead and face no criminal charges. Even places with euthanasia laws make these extremely limited in scope.

So with CHILD ABUSE consent can be crucial.

Forcing a child to strip naked and walk naked in front of strangers as PUNISHMENT could be CHILD ABUSE in Florida. Letting the child run around naked on private land with some other naked kids when the nudity is not viewed as shameful by these kids would not get you convicted of CHILD ABUSE, even in Fundamentalist Florida.

31 Anna April 20, 2009 at 11:36 am

‘Anna, it is untrue that children cannot give consent. In most jurisdictions, for example, children of certain age CAN consent to have sex.’

okay, seriously, what the fuck no.
..unless you’re suggesting grooming by paedophiles (such as family friends/members) is ok. which is quite patently isn’t.

32 Cara April 20, 2009 at 11:41 am

Or unless she’s conflating “children” and “teenagers.”

33 Anna April 20, 2009 at 11:44 am

p.s. your analogy blows dead goats. forcing a child to strip is child abuse. ASKING a child to strip is also child abuse, even if they say ‘sure’. They’re kids, for crying out loud. THEY CANNOT GIVE CONSENT.

34 Dida April 20, 2009 at 1:50 pm

In Florida a CHILD is legally defined to be anyone below 18. It is also the definition in widespread use for many purposes, e.g. U.N. declarations like Convention on the Rights of the Child.

Also, in some jurisdictions, a child of certain age can give consent to sex only with another child at most a few years older. So such consent has nothing to do with adults grooming kids.

And we were talking about a 16-year-old girl in Florida — legally she IS a child.

The issue here is that Florida prosecution chose to use a statute that makes the 16-year-old girl a delinquent — while ignoring the real reason she was a victim.

Anna, I find it a bit disingenuous for you to pretend that CHILD in this context was meant not to include teenagers. You must have known perfectly well it would make no sense for me to exclude teenagers from the definition, since I was talking about LEGAL issues.

P.S.
CARA: If you are saying that 13-year-olds (TEENAGERS) should be considered adults, with full adult rights, including making (selling?) pornography, it’s a separate (though related) issue.

35 Dida April 20, 2009 at 2:09 pm

And Anna, if you think that LETTING a kid run around naked with other naked kids on a nudist beach is somehow the same as FORCING the kid to walk around naked in public as punishment because she considers it shameful, well I think you should see a psychologist. Or maybe you’re an American, in which case I guess you’re already considered normal.

P.S.
And the idea that children can’t consent to ANYTHING at all is simply fascism. Children (pre-teens if you wish) should not be able to consent to what is likely to HARM them or ENDANGER them etc.

Kids should also gain some rights with age regarding their beliefs — e.g. if a 12-year-old decides meat is murder, it should be child abuse to force her eat a hamburger.

36 Dida April 20, 2009 at 2:39 pm

Just to clarify, since cheap shots seem in ready supply here: obviously a 12-year-old should not be allowed to end up seriously injured or worse due to her beliefs, e.g. if she comes home saying she now believes blood transfusion is immoral or whatever, she should not be allowed to die if she must have transfusion.

There needs to be some middle ground between kids (including preteens) having NO freedoms at all and having SO MUCH freedom (e.g. sex, contracts, guns) it can get them seriously harmed.

37 Dida April 20, 2009 at 5:40 pm

Cara wrote:
” In a case of beating a child, you don’t have to prove in court that the child didn’t say “okay, Mom, hit me!” ”

Moms can beat their kids in every state of the U.S. — it is legal as long as the parent does not risk injuring the child.

Injuring, however, includes MENTAL injury. And here the child’s consent can play a role. Take two examples.

A small boy is spanked repeatedly for wetting his bed or for being dyslexic. That CAN (but, sadly, seldom is) prosecuted as child abuse.

Now take a small boy who beats up a girl badly on a playground just for something she said. The boy’s mom admonishes him and asks what he thinks his punishment should be — and he says spanking, since he hurt that girl.

In the second case, there is no abuse if the mom (within bounds) spanks the boy.

Cara wrote: “The same with sexual abuse. If someone is below the age of consent, that legally counts as abuse.”

This is what you do not seem to understand.

With CHILD ABUSE laws you MUST PROVE ABUSE.

With CHILD SEX or MOLESTATION or PORNOGRAPHY laws you need NOT prove abuse — in fact they apply even if you can prove NO ABUSE occurred.

So in Florida if a 15-year-old girl entices a 14-year-old boy to touch her breasts, they are both guilty of LEWD OR LASCIVIOUS MOLESTATION.

It does not matter if both the girl and the boy agree this did no harm to them, and parents agree, and 5 psychologists plus the pope agrees. They are still guilty.

This is INTENTIONAL on the part of lawmakers. They want children (teens) to be arrested and treated like ADULT CHILD MOLESTERS who exploit preteens. The lawmakers specify lesser penalties for such teens but the labeling is the SAME.

I think you under-estimate the PURE EVIL behind the way these laws are written. It is their INTENT to label a 17-year-old girl a CHILD PORNOGRAPHER for the rest of her life if she takes a slightly sexual picture of herself and never shows it to anyone but it is found on her phone by a teacher.

That’s how the laws are written.

38 Cara April 20, 2009 at 5:48 pm

Dida –

Are you telling me the shocking and utterly unbelievable news that there are totally fucked up rules on the books regarding sex (even if they’re rarely used), and which totally trivialize actual sexual abuse while at the same time allowing actual abusers to go free?

Yeah, I’m amazed. I have no idea if what you say is true or not (some links would really serve you well if you’re trying to convince me that certain statutes do and do not exist, and, as you seem to be doing, are trying to make a totally legally based argument). I also have no idea why you’re serial commenting or what you even disagree with me about or what your point is. As I said before, and which you have not yet cleared up.

39 Dida April 20, 2009 at 9:29 pm

Cara, the main thing I’m saying is that

A) There ARE laws out there to combat what Alpert actually did wrong. They were not used because, as you correctly noted, the *pictures* are viewed as the real evil — not the harassment.

B) Legislatures intentionally criminalize normal sexual behavior of teens and even preteens — and this behavior is intentionally identified with acts of adults raping or molesting or sexually exploiting children. The punishments are slightly lesser (e.g. felony of 3rd degree instead of 2nd degree) but the statute and label and “crime” are the same.

Florida statutes are a good example — you can read them at http://www.leg.state.fl.us/statutes/

These laws are used quite FREQUENTLY. The reason you do not hear about it often is that juvenile charges are confidential. Also, these laws are mostly used to threaten and blackmail kids rather than to outright convict them. In the Pennsylvania case it was only 3, out of 20 kids, that rebelled and refused to go on probation and to a re-education camp.

See http://blog.wired.com/27bstroke6/2009/03/aclu-sues-da-ov.html

If you want more info just ask.

P.S.
As for serial commenting, well I got “hit” from several sides and tangents by you and Anna. So I was just trying to respond.

40 Dan, esq. May 15, 2009 at 5:18 am

Disclaimer – Nothing written here is intended as legal advise, and it should not be taken as such. In short, I am an attorney, but not yours.

I happened on this blog by random luck, and have never been to this site before, but everyone’s takes were so interesting that I just had to say a few things myself. Sorry I am not including links to the law, but all of them would be to attorney search engines such as westlaw and lexisnexis that laypeople can’t access, and to cases as well as statutes, which would be a royal PITA for everyone to look through.

Firstly, I saw the post “Julian, a reasonable expectation of privacy doesn’t mean that you can assume that what you do will be kept private. It means you have a right to demand that it will be kept private, and that you have a right to pursue redress if it isn’t.

That’s what the concept of a reasonable expectation of privacy means in the legal and ethical context, and it’s a concept we shouldn’t be hand-waving away”

Actually, while this may be what “reasonable expectation of privacy” means in an ethical sense (debatable), it is not what it means in a legal context. In a legal sense, to have a reasonable expectation of privacy in something, you must take reasonable steps to protect it as private, and there are varying degrees of privacy associated with different levels of protection. For instance documents or papers concealed in your own home would have pretty much the highest level of privacy associated with them, while information relayed to another person outside the bounds of a doctor-patient, or attorney-client, parishoner-clergy, student-teacher, or other protected similar relationship would have basically no level of privacy associated with it. (Boyfriend – Girlfriend is not the type of relationship that would EVER get protection of this kind, as it is too undefinable.)

Lets say for example that one consenting adult sends another consenting adult a naked picture of themself. There is (in a legal sense) no reasonable expectation that that picture will not be forwarded to hundreds of other people. For this reason, what the boy did by sending the pictures to all his friends, while morally reprehensible, was not harrassment in a legal sense. Actually, to classify as “harrasing” behavior has to be pretty outlandish, even by these standards. (and yes, I get that by moral standards, what he did is outlandish, but it doesn’t come close to harrassment).

So, to everyone who said that the prosecutors went after the boy under the pornography charge to purposely insult the girl: That is not the case. They did this, because it was that or let him go unpunished.

Second, are what the boy did by sharing the picture with all his friends, and what the girl did by sending it to her boyfriend morally equivalent? No. Of course not, but they are both guilty of child pornography legally, while he is guilty of many counts, because of the many people he forwarded it to, she is guilty of one. (per picture or video)

Somewhere up there, someone put a post about there not being a law to address what the boy really did wrong. I take that to mean sending the pictures around without her permission. No, there isn’t. If she were an adult, he would have walked away free and smiling, and unfortunately, would probably have never felt guilty about it for a day in his life. Eventually, he would forget that it ever happened, while she would remember it with shame forever. This is a tragedy, don’t get me wrong, but there are serious risks when the government decides to legislate against being an asshole.

Ultimately, the person who said privacy doesn’t really exist in a digital context is right. Probably the most important lesson to take from this is one I was taught at a young age. Don’t send an e-mail you don’t want the world to see. Don’t let a picture of yourself be taken that you don’t want the world to see (and believe me I have broken, ripped the film from, or in one case flushed camera’s to enforce this.) Don’t send a letter you don’t want the world to see.

It sucks that that is the way we have to live in this world, but basically there is a decision to be made between how you balance your privacy with your behavior and who you trust. Privacy gets eroded every day.

The problem, however, with legislating morality, is that we live in a (more or less)free country, and I, for one, would like to keep it that way despite its flaws. So really its a question of how much we want the government in our private lives. Should it be a crime for person A to send a picture of person B to person C without person B’s permission? Maybe, but if you do that then there will have to be police looking at people’s picture messages to investigate all pictures that get sent, and all of the e-mails too. Then they will be calling everyone they find naked picture of, and saying…. Hi, we detected a naked picture of you being sent to person C by person A, did you authorize that? Not to mention all the OTHER pictures they will be looking at that get sent. In the end, we find privacy is not increased by this, but rather decreased. (Not to mention the person who sends a picture of a porn-star without his/her permission…that would really get ugly from a legislative/trial end). If you believe that all of this wouldn’t happen, just remember that if Ted Stevens taught us one thing, its that yes… they actually station police in airport restrooms in an attempt to catch people playing footsie.

The net result is, that not all morality can or should be legislated. I know that if one of my guy friends in high school would have gotten a naked picture of me somehow, the whole school would have had it inside an hour. Is it really, when you get right down to it, in any way reasonable to expect anything you say to a teen to be kept private? I would venture that it isn’t. We can hope that someone will keep something private, wish it even, but it may not be the case. Even adults tend to have trouble keeping a really juicy secret, but kids are notorious for it.

The thing is, I think that there is sort of a legal right to be a slime ball, within some limits. I meet people maybe not every day, but fairly frequently, that I think… what a jerk. That doesn’t mean, what a criminal. In truth, I think there are far too many laws. We have noise ordinances, drug laws, intricate tax laws you need to be a lawyer or accountant to truly understand, and in fact we have so many laws and they are so disparately enforced, that no two people get equal justice, and no one person could really tell anybody what all their obligations are. (The other issue with legislating this sort of thing between adults, would be that it is in fact protected free speech. Only the justification of preventing exploitation of children was sufficient to prevent sexually explicit pictures of children from being proliferated.)

Now as to consent. I think there are pretty good reasons to be wary of child pornography, and there is a good reason that people under 18 cannot consent to being photographed in sexually compromising positions. It seems at first glance, that it is absurd to make it illegal for someone to photograph themself in any position they want. If you make it legal, however, BANG – now you have a legal form of child porn. Now if the porn were legal, then the transmission of it to another party could then not be illegal because it would be protected speech under the 1st amendment.

I could rattle off about 100 things that are just plain wrong, but are legal, including – telling someone’s secrets to someone else, cheating on your spouse, not getting checked for STD’s and having as much unprotected sex as possible, drinking and smoking while pregnant, constant teasing of the unpopular kid in school even sometimes to the extent that he kills himself, sleeping with your friend’s spouse (formerly interference with a marriage contract, now generally not a cause of action), swearing constantly around other people’s kids, driving gas-guzzling vehicles, flipping the bird to other drivers on the road, undressing on your first floor and walking around naked in your house in a neighborhood with tons of children around, supplying people with outlines full of bad information prior to an exam, checking out library books you don’t need so other people can’t use them to study, telling every small child you meet that “Santa isn’t real, and neither is the Easter Bunny, and for that matter the same goes for God,” whether their parents are around or not, driving 5 miles per hour under the speed limit in the passing lane, constantly being delinquent on your bills, buying lots of stuff you can’t afford and declaring bankruptcy, drinking away your whole paycheck and saving nothing for your kids college, posting a no tresspassing sign and then shooting someone to death who accidentally walks 3 feet onto your property in a castle doctrine state (minority jurisdiction, but yes in about 10 to 15 states that would be legal), sending out junk e-mails offering to enlarge everyone’s penis wether they have one or not, saying “I promise I’ll pull out” and then not doing it (in some states a battery if it could be proven it was on purpose which is pretty damn hard to prove, and in some states not illegal at all, but most courts would decline to hear the case), impregnating a woman, and then fighting her in court to prevent a paternity test in an attempt to avoid child support, committing suicide and leaving behind a family of dependents who can no longer fend for themselves, dropping kids that you can damn well take care of off at a hospital because you are too lazy to do it (legal in a few states), having anonymous sex with someone and leaving a note that says “welcome to the world of AIDS” on their pillow when your not infected just to fuck with their head, getting someone drunk but not to the point they can’t consent in an attempt to get laid, sleeping with a 14 year old in Louisiana when you’re not even close, arresting a 90 year old with glaucoma in California for smoking weed if you’re a federal police officer, etc.

All of the things on that list are legal. Some of them shouldn’t be, while some obviously should be legal, in spite of the fact that they are totally an asshole thing to do. I would say that in the grand scheme of things, all forms of child porn need to stay illegal, and all distribution of them. This is important to keep pedophiles from making them, looking at them, etc. But between adults, sending without consent pictures that were taken with consent should be one of those, “God the person who did that is an ass, but it isn’t illegal” sort of things, while we go to work on raising the age of consent in Louisiana above 14, and make sure Texans, West Virginians & several others can’t shoot a drunk for walking a few feet over in their yard, as well as some of the more ludicrous other things that are allowed on that list.

One law that definitely needs to go, brought to you by the state of Kentucky, “No female shall appear in a bathing suit on any highway within this state unless she be escorted by at least two officers or unless she be armed with a club”. And yes, the world has indeed gone mad.

41 Cara May 15, 2009 at 8:14 am

So really its a question of how much we want the government in our private lives. Should it be a crime for person A to send a picture of person B to person C without person B’s permission? Maybe, but if you do that then there will have to be police looking at people’s picture messages to investigate all pictures that get sent, and all of the e-mails too.

Right, because rape is illegal. So of course every time I have sex, the police call me up without provocation, with news of an investigation. Similarly, every time I pop a DVD into my DVD player, they call me up and ask to see evidence that it wasn’t illegally copied. Oh, and obviously whenever I bring any new object into my home, they want evidence that I did not steal said objects.

No seriously, you’re a lawyer?

One law that definitely needs to go, brought to you by the state of Kentucky, “No female shall appear in a bathing suit on any highway within this state unless she be escorted by at least two officers or unless she be armed with a club”.

Because I’m sure that arrests for this happen all the time. I’m glad to see that you have your priorities straight, what with being concerned with getting archaic, unenforced laws off the books, rather than with protecting against people who don’t care about sexual consent.

This is a tragedy, don’t get me wrong, but there are serious risks when the government decides to legislate against being an asshole.

Clearly, lawyer dude, you fail to understand the difference between “being an asshole” and “engaging in non-consensual sexual conduct.” The fact that you include an actual form of sexual assault on your laundry list while semi-indicating that you don’t really think it ought to be illegal also tells me that. Someone who engages in non-consensual conduct surely is an asshole, but that’s not the reason why his or her conduct ought to be illegal. The fact that you do not indicate any understanding of that whatsoever in the goddamn book you decided to write on my blog tells me quite a bit about you.

42 Dan, esq. May 15, 2009 at 11:29 pm

The laundry list was of all things that happen not to be illegal everywhere in the country, some of which should be, some of which shouldn’t be, some of which are more, or less extreme than others. My point was NOT that nothing on that list should be illegal, but rather that there are things far more important to deal with by law than someone breaching trust by forwarding a picture around, (in the case of an adult who consented to be photographed) and that there are dangers to changing child pornography laws to allow teens to consensually be photographed naked. Secondly, the list was to explain that there is some level of being a complete asshole that isn’t illegal.

Once a picture of a person is legal, the distribution of it is legal as a result of the first amendment (In that a picture is, like it or not, a type of speech.) With the exception of laws prohibiting giving pornographic material TO children, or sending it via specific media, (for example prime time television which is readily viewable BY children) both of which are exceptions related to the ones already discussed above.

I wasn’t trying to condone any of the activities on the laundry list, all of which I prefaced by saying are examples of being an asshole.

It sometimes takes me a while to get a thought out. Sorry if my post was too long. It wasn’t my intent to “write a book.”

Finally, the “unless she be armed with a club law” was an attempt at levity, but thanks for flaming me about it. In fact I don’t know if it is still on the books anymore or not.

43 lilith January 7, 2010 at 7:20 pm

hi, this is an old post but i figured i needed to add my input into the issue as a teenager myself, i know lot’s of other people who have been involved in this “texting” in particular one girl in my grade at a catholic school who sent a sexual photo of herself to a boy she liked and he then distributed it to other people in our grade, eventualy a girl in our grade informed her parents and they damanded the school do something about the issue. so the school in a completly stupid act suspended the girl, not only is this wrong that she was being punished while none of the males involved were in any way punished. the school then held an assembly just for the girls to dicuss the dangers of sexting and how wrong it was. only the females were talked too about this and no males were punished.

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