Boys will be boys and girls will be … child pornographers?

From a post at the American Civil Liberties Union Blog, explaining that the DA views sexting boys as “being boys” and sexting girls as “felons”:

Only the girls who appeared in the photos were threatened with child porn charges. If the DA did in fact regard these photos as pornographic, why not file distribution charges against the boys? A clue may be found in their argument before the 3rd Circuit. In narrating the case, their attorney explained how, after the girls were photographed, “high school boys did as high school boys will do, and traded the photos among themselves.” Ultimately, that’s what this case comes down to: one man’s view on how a young woman should conduct herself. The boys who traded the photos bear no responsibility and require no re-education.

First US federal case about sexting

Court asked to allow prosecution for “sexting”

I am eagerly awaiting the decision on this case (info and documents from ACLU) from a federal court of appeals that is hearing arguments today.

What’s fascinating about it is that there is no federal legal precedent, to my knowledge, establishing whether pictures that only show female breasts or a bra, without any sex act occurring, can be legally considered child pornography. State prosecutors have been charging teens as though it does qualify.

In US v Knox (1994), a US supreme court decided that a “lascivious” (this is the legal definition) focus on a minor’s clothed genitals was enough for a picture to qualify as child pornography.

Attorney Larry Walters: Some rational comments on sexting

Some excellent quotations from attorney Larry Walters in this in-depth interview: When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case, touching on a number of key points absent in most mainstream media coverage of sexting:

1. Sexting is normal for teens. It’s not a trend, a plague, a disease, or a shocking deviant act.

The idea that teens and kids would be creating child pornography themselves and distributing it by cell phone was never contemplated at the time [child pornography] laws were originally passed. Now, with the influx of technology, we have kids doing things that they were not doing before – creating content, creating pictures, and sending pictures – and, frankly, allowing that technology to be a part of their lives to the extent where it’s even a part of their sex lives. Kids in our current culture allow technology to infiltrate everything they do. They express themselves, whether it’s anger, love, hate, or intimacy, through technology.

2. Teens have few legal rights and protections, especially in schools.

Students are losing constitutional rights – the right to privacy and their expectation of privacy on school grounds. Their cell phones areΒ  getting seized more often and inspected,Β  and these pictures are being found. School officials think nothing of saying, “Give me that cell phone,” and paging through it. The courts aren’t doing much about it. Every once in a while you’ll have a brave judge that will stand up and say, “That’s wrong.” The information is coming to light more often as those constitutional rights are being whittled away.

3. Charging a teen with producing child pornography is unnecessary and unfair, even if you want to use the legal system to address a case of nonconsensual sexting.

A lot of this is a problem with prosecutorial discretion and simple humanity. There are statutes like disorderly conduct, harassment, and stalking – catch-all provisions that police officers and prosecutors always use when they don’t what to charge somebody with when there’s a new behavior at issue. There’s an annoying communication law in Florida. Certainly, there are numerous other options out there for law enforcement.

4. Teens are expected to meet unrealistic ideals for sexual behavior.

I think we’re holding kids to a higher standard for similar behavior than we do adults. When adults send pictures of themselves engaged in sexual activity to each other – a common thing – there’s no crime committed, it’s commonplace, it’s enjoyable and everybody goes on. Kids do exactly the same thing with other kids – they have the same desires and the same erotic feelings – but they’re held to a higher standard. All of a sudden, it’s this horrible crime. It strikes me as odd that we’re holding kids to a higher standard than adults.