Post #5 Option #4 - 'Sexting'

No doubt that the subject of “sexting”, the practice of teens taking and spreading nude photos of themselves, and other forms of self-produced child porn are sensitive issues with all kinds of potential problems. Our first concern when approaching the issue of child pornography as a whole should be to protect the children involved. Our second concern should be to cripple the industry and prevent the future dissemination of child porn. And our last concern should be to punish the person in possession of the material. However, when young teens are exploiting themselves by taking and spreading the photos on their own, the issue becomes even more complicated.

We want to protect the children from the trauma that can result from being exploited. But how do we protect them when they’re doing it to themselves? It’s one thing to arrest and prosecute a grown adult who has forced or tricked a young child into making pornography. The victim and the criminal are clear in cases like those because the adult should know better and the child is often naïve or unwillingly used. But when a young teen creates and disseminates pictures of themselves, we aren’t sure who to blame and who to protect.

There is the recent case of the 14-year-old New Jersey girl who has been accused of child pornography for posting nude photos of herself on the popular social network site, MySpace.com. The young girl could potentially be convicted of distribution and would face sex offender status under Megan’s Law. The argument that police and other legal officials may be using in this case is that they want to set an example by punishing the young girl. Under Osborne v. Ohio standards one of the compelling interests is to disrupt the market for child porn. Police and court officials may feel that by punishing the young kids who make and distribute photos of themselves that they are going after “the market” by going after them. But the first compelling state interest in Osborne v. Ohio is to protect the actual minor in the photos.

When handling these kinds of cases, it is important to make sure that the minors in question are punished. They need to know the consequences of their actions, and to be more careful about the things they do on and offline. But are we protecting them by labeling them as sex offenders? A harsh label that will follow them their entire lives, it will prevent them from getting jobs, living in certain neighborhoods, and much more. We need to consider the fact that minors are neither wise nor experienced. Teenagers often act spontaneously based off their hormones and emotions and don’t truly realize the gravity of their actions. In light of that fact we need to apply special treatment to the punishment of minors for child pornography. We need not extend the same expression rights to minors when it comes to sexually explicit material, even if the minor consents, because we can still consider that speech worthless due to the fact that minors lack wisdom. They may not see the harm in posting nude photos of themselves as art or expression in the present, but in the future they may easily grow to regret that decision. If a minor consents to be part of something that is purposed to have some kind of artistic value, then we should apply SLAPS protection to the material. But only if its artistic or scientific value is proved and the minor's guardian has consented to the child's participation.

We need to protect the minor, but we also need to disrupt the market and show others that there are consequences for this kind of behavior. When someone is both the minor used and the person spreading material, they should be punished. They’ve done the harm, but the harm is only to them so there isn’t a real victim, per se. Labeling them as sex offenders is hardly protecting them however, they’ll carry the trauma with them forever with that sentence. Instead, cases of minors exploiting themselves should be handled based on circumstances. If it involves something happening on school grounds, the school itself should have a procedure for punishing students for spreading and accessing pornographic material on campus. When something occurs at off school grounds, then it should be handled by police. Cases involving someone exploiting themselves should be punished less severely than others. The minor in question should be forced into a court appointed therapy or counseling .The minor’s guardians should be warned about keeping better track of their children, should another incident occur the guardians might be held more accountable.

Cases that involve a minor being in possession of a picture of another minor should also be handled based off circumstance. If one minor willfully sends a pornographic photo to another minor, and that minor is caught with the photo (say a girl sends a photo to her boyfriend). He should be punished the similarly as the girl who made the photo, counseling and possibly some kind of probation. But if a minor sends a photo to other minors, or posts it on the internet, then the punishment should be more severe. Sex offender status is still too strong. Instead the minor should receive some time in juvenile hall or some kind of community service. We want a punishment that will teach them a lesson but not something that could potentially ruin their entire lives.

I suggest we handle these cases based off circumstance because the minors for the most part are foolish. We cannot hold them all to certain standards because young people are often ignorant and unaware of consequences, they are not criminals. They do stupid rash things and we need to both protect and educate them on the matter. Punishment isn’t always necessary.