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by Timothy B. Lee - Dec 29, 2017 9:27pm MSK
Rice County Courthouse in Faribault, MN.
A 14-year-old girl is facing charges in Minnesota juvenile courts that could lead to her being placed on a sex offender registry—all for taking a nude selfie and sending it to a boy at her school. Prosecutors say that she violated Minnesota's child pornography statute, which bans distributing sexually explicit pictures of underaged subjects.
But a legal brief filed this week by the ACLU of Minnesota says that this is ridiculous. Charging a teenager for taking a nude selfie means the state is charging the supposed victim—an absurd result that the legislature can't have intended when it passed Minnesota's child pornography statute, the ACLU argues.
The case is being heard by a juvenile court in Rice County—about an hour south of the Twin Cities. Because this is juvenile court, there's a lot we don't know including the name of the teenager. We don't even know if the selfie in question was a photo or a video.
What we do know comes from the ACLU's legal brief, which includes a brief description of the case. According to the ACLU, the anonymous teen sent a nude selfie to a classmate over Snapchat. The recipient apparently took a screenshot of the message and shared it with others at school without the girl's consent. One of the classmates alerted the police in Faribault, Minnesota, which is presumably where the girl goes to school.
Officials decided to charge the girl with the "felony sex offense of knowingly disseminating pornographic work involving a minor to another person." An adult convicted of this crime can face up to seven years in prison. As a 14-year-old, the girl in this case isn't facing a criminal prosecution in adult court and won't face the harsh sentence an adult might face.
The problem, the ACLU notes, is that if she's found guilty she is likely to be placed on a sex offender registry, where she would face the same stigmas as someone who commits violent sex crimes. That could lead to difficulties finding a job or obtaining housing.
The ACLU's brief doesn't mention whether the boy was charged for distributing the girl's photo to other classmates.
The ACLU also argues that charging a teen for taking nude selfies violates the First Amendment. In a 2002 case, the Supreme Court ruled that the First Amendment protected the creation of virtual child pornography—in which no actual children were used in the creation of works that appeared to involve sex with children. The court held that laws against child pornography were justified because protecting children against exploitation was a compelling state interest. But that argument doesn't apply to a ban on virtual child pornography.
The ACLU argued that a similar point applies here. It doesn't make sense to say that a 14-year-old girl is coercing herself into creating child pornography. Hence, in the ACLU's view, the state lacks a compelling interest to limit the expressive rights of 14-year-olds to create nude selfies and voluntarily share them with peers.
When a teenager sends a nude selfie to a peer "in an attempt to indicate romantic or sexual interest, the same compelling risk of physical and psychological injury does not exist," the ACLU argues in its brief. "Thus, the statute infringes upon constitutionally-protected speech."
Parents, schools, and law enforcement around the world are wrestling with how to handle teen sexting. In 2014, a teenage boy in the UK was added to an investigative database after sending a nude snap to a classmate. The Supreme Court in Washington state recently upheld the child pornography conviction of a 17-year-old boy who sent a picture of his erect penis to a 22-year-old woman.
We can expect to see more of these cases in the future because surveys suggest that it's a common activity among underage teenagers. One recent survey found that 12 percent of 12- to 17-year-olds had sent a sexually explicit image to someone else in their lifetimes—including 4 percent who had done so in the last month. That adds up to millions of teenagers who could be classified as child pornographers by the reckoning of Minnesota officials.
Timothy B. Lee / Timothy is a senior reporter covering tech policy, blockchain technologies and the future of transportation. He lives in Washington DC.
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