Thomas MacAulay Millar, whose post on the Wyoming County, PA case over at Yes Means Yes! I linked yesterday, suggests adding the following exemption to the federal child pornography law (18 USC 2252):
(d) Notwithstanding the foregoing, no person shall have committed a criminal act within the meaning of this section solely by reason of having possessed, transported, shipped, or received a visual depiction wherein the person himself or herself is the only minor depicted.This makes sense to me. It means that a minor would never be prosecuted for "child pornography" based on depictions of him- or herself. Any adult involved in the production or distribution of that material could still be liable, and minors could still be liable for material featuring other minors. But it would eliminate situations like this, reported Wednesday in New Jersey (h/t DailyKos):
CLIFTON — A 14-year-old girl faces child pornography charges after she allegedly posted nearly 30 nude pictures of herself on a social networking site, authorities said.
Detectives with the Passaic County Sheriff’s Department’s Internet Crimes Unit arrested the teen Tuesday. The National Center for Missing and Exploited Children contacted sheriff’s detectives about someone posting photos of an underage nude girl on a MySpace profile. The center, which monitors social networking sites for illegal images of children, contacted county detectives through the State Police’s Internet Crimes Against Children Task Force, said Bill Maer, the sheriff’s department spokesman.
Following a month-long investigation, detectives discovered that the person posting the pictures was the same person featured in them — the 14-year-old girl. Anyone who was “friends” with the girl through MySpace or knew her full name could have accessed the photos.
The teen was charged with one count of possession of child pornography and one count of distribution of child pornography. She was released into her mother’s custody, Maer said.
The teen reportedly told police she posted the pictures into a photo album for her boyfriend’s enjoyment. More arrests may be forthcoming, Maer said.
It's worth noting that while the National Center for Missing and Exploited Children initially flagged these photos for police, an NCMEC attorney recently criticized the practice of prosecuting minors in cases like this. As these prosecutions and threatened prosecutions continue to multiply, I think the case is building for building exemptions into child porn laws for cases like this. Fixing the federal law would just be a start, however, since to date I believe all the reported cases of this phenomenon have been at the state level.
Thomas's proposed exception wouldn't entirely solve the problem, as I see it; in a case like the Pennsylvania one, where three girls took pictures together, the minors could still be charged based on one another's participation. Putting aside that the material in that case was clearly legal, such a scenario, where multiple minors are each charged with victimizing one another, seems equally unwarranted. This would call for a more complex exemption - one that still allows for prosecutions of minors who are truly exploiting other minors - and how to draft it isn't immediately obvious to me. Additionally, if an exception is warranted for the child porn laws in multiple-minors situation like this, you'd presumably need to write a similar one into "sexual exploitation of a minor" statutes, since there's significant overlap between the two sets of laws.
This could be a sticky wicket, but the issue does need serious consideration. Prosecutions like this are to my mind unconscionable. As Thomas wrote yesterday:
Let me say this loud and clear: charging young women with sex offenses for distributing photographs of themselves is social control by intimidation. It ruins young women's lives to make an example of them, to keep others in line.
(As a side note: where did the media come up with the term "sexting"? It's catchy in a garish soundbite sort of way, but it makes no sense: it's meant to refer to sending pictures, not text.)