Not a crime to show dirty pictures of onself to a teen old enough to consent to sex

The usual Creep Caveat applies to this post.

Here's another case dealing with exhibiting harmful matter to a minor. In Salter v. State, 2009 WL 1409484 , the Indiana Court of Appeals overturned such a conviction on the ground that the statute was vague as applied to pictures sent over the Internet to a young woman of 16. The court reasoned that since the state set the age of sexual consent at 16, the "harmful matter" statute failed to provide clear notice to the defendant that he could legally have sex with the woman but could not legally send her pictures of his erect penis.

We understand Salter's argument to be that he had no way of knowing that pictures of his genitals would be considered “harmful” to M.B., given that, under Indiana law, he could have been naked in front of M.B. and had sex with her without violating any law. Again, we must agree.

...By setting the legal age of consent at sixteen, the Indiana legislature has made an implied policy choice that in-person viewing of another person's genitals is “suitable matter” for a sixteen- or seventeen-year-old child. That being so, how could Salter have known that a picture of his genitals would be “harmful,” that is, not “suitable,” for M.B.? Asked another way, if such images are harmful to sixteen- and seventeen-year-old children, then why would our legislature allow those children to view the same matter in-person, in the course of sexual activity?

One judge dissented, noting that the defendant didn't have a sexual relationship with the young woman involved, and that the harmful matter statute did not depend on a minor's consent. But given that the young woman here sent the defendant semi-nude pictures of herself as well, it seems fair to say that there was some kind of consensual sexual relationship here, albeit an online one. It would be truly bizarre if it were legal for two people of whatever age to have sex, but illegal for them to have cybersex. I am aware, however, that in the eyes of many people over 35, anything involving the Internet is automatically twice as dangerous.

(N.B. - the court's opinion makes no mention of the defendant's age.)

Though originally nabbed because of this online relationship with a teenager, Mr. Salter was also charged with something even more unsavory: possession of child pornography. This included not just the pictures of the 16-year-old created and sent by her, but also pictures of unknown, younger children apparently obtained from the Internet. Mr. Salter was clearly liable for possession of the latter (but not the former, because Indiana sets the age for defining child pornography at the age of sexual consent, 16). But the prosecutor decided to go for a bigger sentence by charging him with creating child pornography, on the basis of his downloading the images and burning them to CD. The court (again 2-1) following the reasoning of the New Jersey Supreme Court (State v. Sisler) in concluding that simply copying preexisting digital images does not fall within the ambit of a statute targeted at the actual production of child pornography. The court reasoned that copying a digital images is analogous to simple possession, not to creating a new image.

The court therefore reversed these convictions as well. It noted that the state could not prosecute Salter for simple possession as to the images of the 16 year old regardless, and might have screwed itself out of charging him with possession of the other images because of the state's Successive Prosecution Statute. Which hopefully will teach that prosecutor a lesson.

Craigslist bows to states' pressure, axes "Erotic Services"

This week Craigslist announced that, pursuant to a deal with several state attorneys general, it will be eliminating its "Erotic Services" section. The news media have framed the pressure on Craigslist as a response to recent crimes against people who used the site. Connecticut Attorney General Richard Blumenthal, who spearheaded the effort, has pitched his campaign alternately as aimed at preventing trafficking and child exploitation, and as a plain morals campaign against "pornography, nudity, and open offers of sex for money." Craigslist initially vowed to require posters on Erotic Services to enter credit card information, but the state officials wouldn't settle for that, so the site is no replacing the section with a new "Adult" section, in which each post will be pre-screened by Craigslist employees.

A coalition of organizations advocating for sex workers released this statement:

With Craigslist’s recent announcement that its Erotic Services category will be discontinued within the week, hundreds of thousands of erotic service providers will become more vulnerable to dangerous predators. Eliminating erotic listings as Connecticut Attorney General Richard Blumenthal and others propose will only drive us further underground.

Policing the masseuses, phone workers, pro-dominants, and escorts using Craigslist fails to protect those of us who are coerced into the sex industry. Preventing the use of Craigslist advertisements also eliminates the advantage of screening clients online, which makes for a safer work experience by filtering out potentially dangerous individuals. Furthermore, keeping us offline hinders police investigations of violent crime. In the Boston murder of Julissa Brisman, it was online tracking that enabled the police to identify the suspect. One has to wonder: are the Attorneys General examining the evidence or simply enforcing their moral values?

“Removing the erotic services category from Craigslist does not help prevent violence against escorts and other sex workers. It only pushes me and people like me out of the places where advertising is available,” said Jessica Bloom, a sex worker from Sex Workers Action New York (SWANK). In the face of increasing criminalization, we insist upon respect. As mothers, daughters, brothers, and members of your community, we claim that sex work is real work, work that we are entitled to conduct in safety. As such, we must be accorded the human right of full protection under the law.

Sex work activist Miss Calico has this to say about the move:

It’s true that Craigslist is a major advertising venue, for prostitutes but also sex workers of all kinds: the largest in the nation. Its loss will have a distinct effect on the people who use it. Here’s how it works: we advertise to attract the clients we want, and screen to eliminate the clients we don’t, but the number of clients we need stays the same. Anything that hurts our methods of attracting clients, like the shutdown of Erotic Services, will affect how stringent our screening can afford to be. It’s pretty clear to me that Craigslist has just made its sex workers more marginalized and more at risk.

Now, Craigslist has no responsibility to provide an advertising venue. But if Attorney General Richard Blumenthal is trying to make sex workers safer, he’s going about it all wrong. He doesn’t need to protect us from ourselves, or from our clients. He needs to protect us from criminals.

At the Sex 2.0 conference this past weekend, Melissa Gira analogized the panic over Craigslist to New York City's "cleanup" of Times Square. Both spaces came to represent the threat of sexual corruption encroaching on "normal," "decent" places. Targeting these spaces allowed politicians to simultaneously appear to be both protecting moral purity and addressing real social problems of crime, etc., without really addressing those problems at all. As Miss Calico points out, sex work isn't going away, and the short term effects of driving online sex work advertising "underground" -- at least until some other site replicates the efficiency, anonymity and ubiquity of Craigslist -- could be harmful both for sex workers and for law enforcement.

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As a side note, none of the news reports or press releases indicate what kind of legal claims the state governments might have had against Craigslist. I've previously mentioned the question of federal immunity under Section 230 of the Communications Decency Act with regard to a still-pending public-nuisance suit targeting "Erotic Services." The Ninth Circuit Court of Appeals recently held, in an egegrious case of revenge porn, that Yahoo! might have lost its 230 immunity only because its staff specifically promised the plaintiff to take the offending material down.

UPDATE: Here's some further analysis of Craigslist's likely legal defense under CDA from the Electronic Frontier Foundation. (More, too, from the Citizens Media Law Project which notes the site's previous efforts to ensure Erotic Services isn't use to exploit children.) Of course, settlements like this are based not only on likelihood of success but on business decisions about public relations and litigation costs. They have previously won litigation over discriminatory preferences in their housing ads, but that doesn't mean they're eager to go through the process again. Ditching Erotic Services was clearly more desirable for Craigslist than fighting several state governments in court and in the media.

Sex 2.0 and "I Am a Sex Worker" PSA

I attended the Sex 2.0 conference in Silver Spring, MD this past weekend, and it was an absolute blast. It was great to meet bloggers and activists I admire (like Elizabeth Wood), catch up with my college classmate and former sex-educator colleague Maria Diaz, see a lot of other familiar faces, and share in discussions of the Internet, social media, sex blogging, erotica, sex work, and sexual freedom activism. One of the many cool things I was turned on to was CARAS, an organization of academics that supports and promotes community-based research on alternative sexualities. Another was this awesome PSA from Sex Work Awareness:

Gender, "deception" and the law, pt. 3

This is the third post in a series inspired by the Angie Zapata murder trial in Colorado, and in particularly by the suggestion by some people that transgender people who are victims of hate crimes by sexual partners were themselves guilty of "deception." In the first post, I sketched out the traditional narrow legal interpretation of the kind of deception that can vitiate sexual consent. In the second post, I explored possible extensions of this concept and argued against them. This post specifically considers the question of disclosure by transgender people of their sexual anatomy and/or gender history to sexual partners.

Actual gender "deception" cases. A recent article by an Israeli law professor identified five cases internationally in which transgender individuals have been prosecuted for failing to disclose their gender history to sexual partners: two cases in the U.S., one in the U.K., and two in Israel. See Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harvard Journal of Law & Gender 165 (2009).

• In the United Kingdom in 1991, Jimmy Saunders was charged with indecent assault on the basis that he concealed the fact that he was born female from two sexual partners. He was convicted, though the Court of Appeals reduced his sentence.
  
• In Colorado in 1995 - the same state where the Zapata murder took place - Sean O'Neill was charged with false impersonation and sexual assault on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to lesser charges.
• In 1997 in Washington state, Christopher Wheatley was charged with sexual assault on the basis that he concealed the fact that he was born female from two sexual partners. He plead guilty.
• In Haifa, Israel in 2003, Hen Alkobi was charged with sexual assault and "impersonation of another person" on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to the sexual assault charge, contested the impersonation charge, and was convicted on both charges.
• In 2007, another transgender man in Israel was charged with statutory rape as well as "indecedent acts" on the basis that he fraudulently obtained consent from a sexual partner by concealing the fact that he was born female. (My only source for this case is Gross, who does not give a name and says the case was ongoing as of early this year.)

I would be very interested to find out more about these cases than is available in readily-accessible, English-language sources, particularly the U.K. and recent Israeli cases.

Notably, all of these cases involved male-identified transgender persons who had sexual relationships with underage women (and in all but one case, with multiple underage partners). It thus appears that it is peculiarly trans men who partner with women who are in danger of being prosecuted for dating without disclosing (whereas women who partner with men are in more danger of being killed by their partners). Additionally, each of these cases apparently could have been prosecuted solely on charges of statutory rape. Thus, these are not cases of individuals being singled out for prosecution based on failure to disclose, but rather cases that would have been prosecuted regardless based on the involvement of minors - though it is clear that prosecutors and/or judges in these cases did have particular reactions of disgust to these gender-variant defendants, and to their involvement of seemingly unwitting young women in what these authorities no doubt regarded as homosexuality.

As far as I can tell, in only one of these cases -- the U.K. case -- did a court rule that failure to disclose one's anatomy or gender history vitiates consent and creates liability for sexual assault. In the other cases, it appears the defendants simply decided to strike a deal, which made sense given that they were probably liable for statutory rape regardless. The latter cases provide no support for the legal theory that these circumstances negate consent. Even in the Saunders case, it's not clear from secondary sources to what extent this aspect of the prosecution was challenged, or even if the assault convictions themselves (rather than just the sentence) were appealed.

U.K. law today. In 2000, the Law Commission of the United Kingdom specifically recommended that the U.K. Sex Offences Act not be interpreted to treat a failure to disclose transgender status as deception that vitiates consent. The Commission reasoned that this would amount to "the creation of a special rule for transsexuals," and accordingly would likely violate the European Convention on Human Rights, which prohibits discrimination against trans people and guarantees the right to expression and recognition of a person's gender identity. (While the Commission stated this recommendation only in terms of individuals who had undergone sex reassignment surgery, it would probably take a different view now that, under the Gender Recognition Act, the U.K. permits change of legal gender in the absence of surgery.)

Regardless, in 2003 the U.K. revised its sexual offenses law, and narrowed the language concerning deception. Following the traditional approach of American courts, the current language covers only situations of deception about "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant." Thus, regardless of the Saunders case, it appears that UK law today would not treat failure to disclose anatomy or gender history as rape or indecent assault.

Trans people are not liars. Consider why a transgender person would hesitate disclose their sexual anatomy or gender history to an actual or potential sexual partner. Trans people are not sexual predators looking for unsuspecting victims. They live in a society where their gender identity and expression are not accepted as authentic by many, perhaps most people around them - indeed, where that identity and expression are viewed as mere pretense. They live in a society where fear and loathing of gender variance and homosexuality are intense. These fears are linked by failure to understand or accept trans identities, and manifest most strongly as fears of sexual pollution. These facts are particularly salient for trans people who are young, are just beginning or have recently made a gender transition, and who live in rural or socially conservative areas. Add to this the psychic distress, embarassment and extreme shyness many trans people experience regarding aspects of their sexual anatomy and gender history. Being rejected by a partner who does not accept their gender identity is a painful prospect - as is seeking out partners who will desire them precisely because of not accepting their gender identity.

Given this context, disclosure to potential partners is fraught on all sides for many trans people. The partner who will both accept their identity and still desire them will be rare - depending on geography and other factors, perhaps very rare. At the same time, by not disclosing they are not lying: they are simply living their lives and presenting their authentic gender, as they do in other social relationships. And once an interpersonal connection exists, the prospect of coming out can be frightening, and appear very much easier to postpone or avoid.

Trans people are no more liars when they do not disclose these matters to potential partners than they are liars by simply living their lives. This is who they are. Of course, in a long-term relationship, tiptoeing around the personal details will be difficult and probably unhealthy for the relationship. For this reason, and in response to very real fears of violence, trans people usually do disclose to sexual partners, especially when looking for a lasting romantic relationship. While I have little sympathey for other people's anxieties about being sexually polluted by a sexual partner with the "wrong" body parts, it's never desirable to risk distress to others. But I find it difficult to judge morally, and repulsive to punish criminally, the choice of some individuals, particularly in casual encounters or at the beginning of a relationship, not to come out.

Gender, "deception" and the law, pt. 2 of 3

In my last post, I began a discussion of the concept of sexual "deception," inspired by the pernicious suggestions of some commentators that transgender hate crime victims such as Angie Zapata themselves committed criminal sexual assault by failing to disclose their anatomy/gender history to sexual partners. I explained that the law has generally construed the concept of criminal sexual deception very narrowly, to include only deception about (a) the nature of the act itself as a sexual act, and (b) the identity of a defendant posing as another person. In this post, I will consider some other potential categories of sexual "deception." In a final post, I will discuss the handful of cases in which transgender individuals have actually been prosecuted on the basis of nondisclosure to sexual partners.

Beyond the narrow categories discussed in my last post, other types of sexual "deception" have been rejected by courts and most commentators as grounds for criminal liability. By contrast, some commentators have taken the view that deception about any fact that the defendant had reason to know would be material to the complainant vitiates consent and constitutes rape. Let's consider what kinds of information that could include.

Fraud in the inducement.

Courts have generally distinguished in this area between fraud in the factum, i.e., about the nature of the act consented to, and fraud in the inducement, i.e., about factors that motivate consent. To state this distinction is to recognize that it is far from an airtight distinction. It's possible to define any personal or circumstantial fact as part of the "nature of the act consented to," but not very meaningful to do so. Consider some common examples:

• Promise of love or marriage

Courts once upon a time would punish people who broke such promises to sexual partners with civil judgments (not imprisonment). No longer.

• Promise of money.

The failure to pay a promised fee for sexual services seems much more like theft of services than rape - and it no doubt would be treated as such, except inasmuch as the selling of those services was illegal to begin with.

• Personal prestige and connections.

"I'm a record producer" or "I'm in a rock band" are the typical examples. But note that this comes in many degrees, and such claims to power, status or wealth may also be implied through conspicuous consumption, name-dropping, and the like.

In all of these circumstances, I think it's fair to say that what's going on is dishonest and sleazy, but bears little resemblance to rape.

Personal characteristics.

This category, of course, includes things like anatomy and gender history. Again, personal characteristics can be described as part of the "nature of the act" or the "identity" of the (putative) perpetrator, but this strikes me as a rather circular word game. Here are a few key examples of personal characteristics that may not be readily apparent, yet would be sexual deal-breakers for some people:

• Marital or relationship status
  
• Sexual orientation (esp. identification as gay or bisexual, or sexual history with X gender)
  
• Race, ethnicity, nationality, or caste
• Religion
• Manner of employment (e.g., involvement with a controversial practice or cause)
  
• Criminal record
  

I'd go further and state that at least in some situations and for some individuals, not only could these facts be deal-breakers, but if discovered after the fact any of them could cause some individuals deep feelings of shock, disgust and betrayal, as has apparently or allegedly occurred in several cases involving trans people. [This was originally a reference to the Zapata case, but commenters noted that the relevant facts were very much in question in that case.]

Yet do individuals have a right to know these facts? If so, a troubling list of subsidiary questions appears: Do they have a right to know some of these facts but not others? If so, which ones? Is such a list to be determined by how common intense feelings about a particular characteristic (vis a vis sexual partners) are among the general population (or some sub-population)? Unless such a list is codified in a statute, how are individuals to know which personal facts they are bound to disclose? Furthermore, is there an affirmative obligation to disclose to all partners? To all partners that one knows for sure have strong feelings about that personal fact? To all partners that one has reason to believe might have strong feelings about that personal fact? What constitutes reason to believe, and isn't possession of that knowledge by a particular partner often happenstance? Or is the obligation simply not to make affirmative contrary statements? In my view, these problems are intractable, at least as a matter of law.

Additionally, a disclosure obligation will necessarily place the greatest burden on members of socially marginalized groups. Essentially, group members will be forced to wear a scarlet letter with regard to their entire romantic and sexual lives. It strikes me as very problematic to place a societal badge of approval on loathing for certain groups of people, even in the name of protecting the sexual autonomy of others.

Caveat amator.

The notion of "caveat amator" is often mentioned in discussions of sexual deception: individuals ought to be aware of some inherent risks of sexual activity. This logic, quite obviously, can be taken too far, particularly given the larger social context of gender inequality. But it does seem apt with regard to the question of disclosing personal characteristics, and all the moreso the less the persons involved know one another. In a casual sexual encounter, or even early on in dating, it is self-evident that there is a great deal about your sexual partner you do not know. Even if a person makes false statements about him- or herself, the extent of the emotional harm done to the other person will typically vary with the length and depth of the parties' acquaintance. Finding out that my lover of three years has, say, a loathsome personal history will certainly be far more distressing than finding out the same thing about the anonymous stranger I shagged at the bathhouse.

Law versus morality/ethics.

There are a few tangled but distinct questions here:

1. Whether nondisclosure or false statements to sexual partners should be treated as vitiating consent to sex, so that seemingly consensual sex is regarded as a sexual assault.
2. Whether nondisclosure or false statements to sexual partners should be subject to legal penalty on some other basis (such as subjecting partners to harmful consequences).
3. Whether nondisclosure or false statements to sexual partners is immoral or unethical.

It seems obvious to me that, assuming sets (1) and (2) exist, they will each be smaller subsets of (3). There is a great deal of sleazy behavior in sexual relationships that should be condemned and discouraged. But as Alan Wertheimer has noted in his thoughtful book Consent to Sexual Relations, "The law is a blunt and expensive instrument, to be invoked with great reluctance, even at the cost of refusing to sanction some behavior that is clearly wrongful." (Wertheimer devotes a full chapter to the topic of deception, which is worth reading.) Moreover, it seems to me just to take into account factors that may inhibit an individual from immediately disclosing some potentially inflammatory personal facts - particularly their membership in a marginalized social group based on characteristics having no relation to their moral worth or contribution to society.

On the general principle that causing avoidable emotional distress to others is wrong, one could easily recognize a moral imperative to disclose some information to potential partners who might be upset by it. All the moreso in situations where the potential partner will be unwittingly involved in unethical behavior (as with a cheating spouse) or exposed to tangible risks (as with a sexually transmitted infection). While others might disagree, I am hesitant to recognize a strong imperative of this sort on the basis of membership in any socially marginalized group. But regardless of that question, it seems clear to me that nondisclosure in such contexts should not be regarded as vitiating consent to sex.