Monday, January 28, 2008

Children as child pornographers, redux

Awhile back, I discussed the prosecution of minors for producing or distributing child pornography featuring themselves. Criticizing the decision of a Florida appellate court to uphold such a conviction, I argued that the justifications for exempting child pornography from First Amendment protections are much weaker in such cases.

And now, also in Florida:

"A local teen could face felony child pornography charges after nude images and video of local juveniles were discovered on a MySpace page."

This news report doesn't say whether the "suspect" is a minor, or whether there was any indication of pressure or coercion involved. But when it's so easy for carousing teens to -- point, click! -- take racy photos and -- point, click! -- upload them to social networking sites, and other online hangouts -- without the involvement of adults, and without stopping to think of the consequences -- there are bound to be more such cases, possibly a lot more.

Indeed, in reading about this case I found a mention of a similar case last year in Rhode Island, also involving MySpace . I couldn't find any news reports on what happened since in the case, but it seems that altogether three teenage girls were arrested. (The blog that pointed me to this case went so far as to speculate that, "It probably happens everyday.")

Is locking teens up for their own protection, or that of other teens, really an appropriate response? Is it something we have the stomach for?

Oregon court: child gets a say in circumcision

The Oregon Supreme Court today blocked a father from having his 12-year-old son circumcised. The case has garnered a fair bit of attention, including amicus briefs from religious and medical organizations. However, the court declined to weigh in on the pros and cons of the procedure; instead, it remanded to the trial court to determine how the child felt about being circumcised, and how that should bear on the custody arrangement.

Although the parties and amici have presented extensive material regarding circumcision, we do not need to decide in this case which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M.

However, in this case, mother has averred in her affidavit that M objects to the circumcision. In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or at 400 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here.

The court's narrowly reasoned decision is hardly a clear victory for either proponents or opponents of male circumcision, or for that matter of children's autonomy in medical decisionmaking. It would be easy enough, for example, to distinguish this case from that of two parents disputing whether to surgically "correct" an intersexed infant, given the supreme court's emphasis here on the child's near-pubescent age. Still, given the high profile of this case, other litigation on this and related issues is bound to follow, and to be very interesting indeed.

In vaguely related news (via Reproductive Rights Profs Blog), Rwanda has launched a campaign to promote circumcision for men as an HIV-prevention measure. There is, of course, recent evidence that circumcision has a protective effect. I have the impression that HIV/AIDS activists are ambivalent about this strategy; after all, circumcision alone may have some protective effect, but doesn't compare to condoms. And of course, anti-circumcision advocates are plenty ticked.

A return to blogging!

This blog has been on hiatus for some months due to:

-- Studying for the Maryland Bar
-- Moving to Maryland
-- Starting my job at the National Senior Citizens Law Center

I now hope to return to posting occasionally to this blog, with a few posts on the way at present.