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Child Porn Laws Used Against Kids Who Photograph Themselves
Privacy advocates say prosecutors are misusing child pornography laws by turning them against the very people they are meant to protect. The accusation comes following a raft of recent child pornography cases against juveniles accused of photographing themselves in the nude. This week, prosecutors in Greensburg, Pennsylvania charged six teens ranging in age from 14 […]
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Privacy advocates say prosecutors are misusing child pornography laws by turning them against the very people they are meant to protect.
The accusation comes following a raft of recent child pornography cases against juveniles accused of photographing themselves in the nude.
This week, prosecutors in Greensburg, Pennsylvania charged six teens ranging in age from 14 to 17 with creating, distributing and possessing child pornography, after three girls were found to have taken photos of themselves in the nude or partially nude and e-mailed them to friends, including three boys who are among the defendants.
The case is only one of the latest in a spate of similar prosecutions and investigations . In Florida, officials similarly charged a 16-year-old girl and her 17-year-old boyfriend with producing, directing or promoting child porn after they photographed themselves having sex. Neither of the teens shared the images with anyone else.
The issue of teenagers distributing self-made pornography isn't new, but its prevalence and consequences have been exacerbated by advances in technology. Thirty years ago a teen who wanted to take nude self-portraits had to develop the film at a lab, and distribution was limited by the number of copies made from the negative. Now a camera-phone and internet connection are enough to send the image around the world in an instant, whether or not the sender intended it to reach that far.
Critics say the criminal charges against minors, under laws that were meant to protect them from adults, is the wrong way to address the issue of teens exploring their sexuality. Law enforcement's reaction effectively turns victims into perpetrators, they say.
"The problem is that the child porn laws were really designed for a situation where an adult abuses a minor by forcing that minor ... psychologically as well as physically ... into taking these pictures," said Mark Rasch, a former federal cybercrime prosecutor. "But when the person takes the picture herself or consents to the picture being taken, it turns the whole statute on its head."
In the Pennsylvania case, a school official seized the phone of one of the boys after he was caught using it during school hours in violation of a school rule, according to local police Capt. George Seranko. The official found the picture on the phone, and after some interrogation, discovered that two other girls had also e-mailed photos of themselves in the nude to friends. That's when the school called police, who obtained search warrants to seize the phones and examine them. Police showed the images to the local district attorney, who recommended they bring charges.
Seranko said the images "weren't just breasts; they showed female anatomy."
Authorities argue that bringing child porn charges against teens is designed to educate them about the dangers of creating and distributing such images, which could fall into the hands of commercial pornographers, pedophiles or others who might want to harm or exploit them.
But Parry Aftab, founder and director of WiredSafety, which educates kids about internet safety, says the prosecutions are desperate acts by frustrated law enforcement officials, and they don't achieve the desired effect.
"Prosecutors don't know what to do, so they are reaching out in the way that prosecutors do," she said.
Rasch agrees. "You take teenagers, alcohol and cell phone cameras and put them in a room together and you've got a prescription for disaster," he said. "But you shouldn't be making felons out of it."
Rasch supports legislation to exempt any minor from prosecution for creating an image of himself or herself and distributing it to friends. The recipient, too, should be exempt, though Rasch sees no problem with charging a boyfriend or friend if they distribute the image further without the girl's consent. Even then, though, he thinks there's room for debate about the consequences.
"If my son or daughter were doing this kind of stuff, I'd have a serious discussion with them about the consequences, but I don't know that it would help anybody to throw them in jail," he said.
Rasch said teens don't realize that one unintentional consequence of self-made child porn is that it can sometimes provide authorities with evidence of other crimes. He cites the case of Genarlow Wilson in Georgia who was convicted of having consensual oral sex with a 15-year-old girl when he was 17 based on a videotape of his encounter with the girl at a party. Wilson was sentenced to 10 years in prison and required to register as a sex offender, though he was released after serving two years following an appeal to the state supreme court .
There are no known cases involving federal charges against a minor for child porn: the recent cases were brought under state laws by local prosecutors, usually in juvenile court. Since juvenile cases are not part of the public record, Rasch says it's not known what kinds of sentences have resulted from such cases. But he said generally juveniles who commit crimes get convicted of delinquency, not the actual crime they commit.
In the recent Pennsylvania case, Capt. Seranko said the teens are likely to get community service if convicted.
"Their records won't be scarred for life," he said.
Rasch points out that people who take or share nude self-portraits when they're minors could be prosecuted as adults and face harsher penalties if they're still in possession of the images when they reach the age of 18.
With regard to the claim that prosecution of minors will deter other teens from engaging in the same activity, Aftab says this isn't the case, because teens don't identify with the concept of criminal charges. She points to the famous case of several teenage girls in Florida last year who were arrested for beating up another girl .
"They were laughing on the way to jail and worrying about if their hair will look good on camera," said Aftab. "They didn’t understand that jail is jail."
In the case of teens charged with child pornography, they simply don't see a difference between posting provocative pictures on MySpace and sending nude photos to friends.
"These kids are now seeing stuff on MySpace and other places online where other kids are posing in sexual poses in the nude performing real or mock sex, and to them it's just their 15 megabytes of fame. They think it's the norm," she said.
Aftab says the solution is counseling and education. The former should enlist mental health experts, and the latter should involve teen educators, since teens don't listen to adults when it comes to regulating their behavior.
She also said teens who engage in this kind of activity should be punished with a consequence that really matters -- having their cell phone taken away or losing internet or other privileges.
"That's real," Aftab said. "It's quantifiable and it's within their reach."
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