
Court OKs child porn prosecution of minors distributing pictures of themselves - ikeboy
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/14/its-okay-to-prosecute-minors-for-child-porn-for-distributing-sexual-pictures-of-themselves/
======
TazeTSchnitzel
Because of the potential for selective or punitive prosecution I'm in favour
of legalising teen sexting. Obviously the law needs to be carefully drafted to
avoid allowing child exploitation, but it should absolutely not be possible to
prosecute normal sexually-active teens under child pornography statutes.
“Trust us, we'd never use it against the people it's supposed to protect”
isn't enough.

~~~
Chathamization
> “Trust us, we'd never use it against the people it's supposed to protect”
> isn't enough.

Especially because it's been so horribly abused in the past. Take this case in
Manassas, Virginia. 17 year old texts a picture of his penis to his 15 year
old girlfriend. The police find out, charge the 17 year old with distributing
child pornography, and take pictures of his penis saying they need it for
evidence[1]. They then get a warrant from the courts demanding that the 17
year old send them a picture of his erect penis[2]. And if he didn't comply:

> If he doesn't cooperate, the Manassas City Police Department has threatened
> to take him to a hospital and medically induce an erection with an
> injection, attorney Jessica Harbeson Foster toldThe Washington Post.

Eventually they backed off when it received widespread attention in the press.
Later it turned out that the detective in charge of the case was a
pedophile[3]:

> A Manassas City police detective, who was the lead investigator in a
> controversial teen “sexting” case last year, shot and killed himself outside
> his home Tuesday morning as police tried to arrest him for allegedly
> molesting two boys he met while coaching youth hockey in Prince William
> County.

When I read stories like this, I'm at a loss for words. No one in the justice
system realized how terrible this is? Not only does this show the problem with
giving law enforcement this kind of power, but I think it shows that we really
need some sort of public advocacy department to monitor and go after this sort
of abuse (someone to watch the watchmen).

The kid in the case got probation, by the way.

[1] [http://time.com/2971033/virginia-police-search-warrant-
photo...](http://time.com/2971033/virginia-police-search-warrant-photos-
sexting-teen-genitals/) [2]
[https://www.usatoday.com/story/news/nation/2014/07/09/virgin...](https://www.usatoday.com/story/news/nation/2014/07/09/virginia-
teen-sexting-cops-penis-photo/12434813/) [3]
[https://www.washingtonpost.com/local/public-
safety/manassas-...](https://www.washingtonpost.com/local/public-
safety/manassas-city-police-detective-in-teen-sexting-case-commits-
suicide/2015/12/15/de88f7c4-a356-11e5-9c4e-be37f66848bb_story.html)

~~~
astral303
This case is such atrocious abuse of power. The fallout from this case did not
affect _nearly_ enough people. Think of all the enablers of this behavior at
the various stages. The patriarchy has much of America in their clutch at
various levels of so-called "public" service. Why was this man never reported?
Everyone covered up for him. Standard operating procedure for America.

~~~
adrianN
What does this have to do with the so-called patriarchy?

~~~
jquery
"The patriarchy" has evolved to mean "something I don't like" so it's a pretty
accurate use of the term.

~~~
pessimizer
It means what it always meant, the tree of men who control things. It's just
become more widely used because the fact that everything is controlled by men
in authority doesn't need feminism to be true, it just needed feminism to be
pointed out. It's just as true no matter what your concerns about authority
are. Not using the word is just being unnecessarily vague.

It's akin to something that bothers me personally; when people refer to
"America" when they mean "White America." Yes, the recent rise of the alt-
right has put on display an undercurrent of discontent in America, but when
you say that, you're not being specific in a way that is distorting.

------
thanksgiving
I'll be the bad guy here and say that these laws should all just go away. It
is just too convenient to plant "evidence" be it alcohol, drugs, or this.

The idea that minors cannot consent is correct. Children are not a scaled
small version of adults. They need to _develop_ not just grow physically and
children are vulnerable. We need to protect vulnerable members of our society.
However, like with so many things in life, we've gone too far though. We need
to scale back this stupidity be it "for the children" or "terrorism" or "drugs
are bad".

There's a quote about doing the same thing and expecting different results
which I can't remember off the top of my head but to me all of this: including
the drama against marriage and abortion feels like bread and circus to get
people occupied with silliness.

~~~
dcow
> There's a quote about doing the same thing and expecting different
> results...

It's the definition of insanity.

The abortion topic is interesting because we're talking about how we socially
define a human life in a realm where science can't help at all (or at least
has failed to give a concrete answer thus far). If it was an accepted truth
that human life begins at conception, then abortion is murder. Even our laws
reflect that at a certain stage prior to a baby exiting the uterus the thing
is, for all intents and peuposes, alive. I actually think using fuzzy privacy
prose to defend the right to terminate something that may or may not be
conscious or "human" is really a stretch.

Anyway for all the other stuff I agree: insane.

~~~
ajmurmann
I think the abortion discussion is much easier than its made out. I like Peter
Singers approach to ethics which sets the goal to be avoiding of suffering.
Now the question is easy: at what stage of the pregnancy can the being suffer?

The entire abortion conversation is completely ruined by most people wearing
glasses colored with existence bias.

~~~
marcoperaza
If you like Peter Singer's approach so much, then you agree with him that one
should be allowed to "abort" babies for a long time after birth as well? No? I
guess it's not so easy after all.

~~~
paulmd
You're being hyperbolic but we don't allow children to make medical decisions
for themselves until the age of majority, and parents can choose to make
medical decisions that they know will result in the death of a child (eg
refusing treatment for life-threatening diseases due to religious concerns).

So effectively yes, this is already the state of things, and there is no
serious movement to restrict this form of post-birth abortion. Who would have
imagined that all it would take for abortion to gain acceptance is to frame it
as a religious liberty?

(correct answer: anyone who's lived in America)

~~~
marcoperaza
> _parents can choose to make medical decisions that they know will result in
> the death of a child (eg refusing treatment for life-threatening diseases
> due to religious concerns)._

That is false. Parents cannot legally deny their children life-saving
treatment.

Also, I'm not sure where I am being hyperbolic. Peter Singer literally does
advocate for the "right" to kill young children for a long time after their
birth. So if you say that Peter Singer offers an "easy" moral approach to
abortion, I have to ask whether you actually do agree with his logic and
follow it to the same ultimate conclusions that he does.

------
jfaucett
What is the rationale behind defining child porn age < 18? I think most would
agree there is a profound difference between a 23 year old dating a 17 year
old and a 50 year old having anything sexual to do with an 8 year old. There
are worlds of moral difference here.

The first case is something that actually happened to a friend of mine. He was
23 and dating a 17 year old, got convicted, sent to prison, and is now labeled
a sex offender for life.

Are there any countries out there that take a sane approach to this moral
conundrum?

~~~
lr4444lr
The rationale is the age of majority. As a parent, I have a right to control
the influences in my daughter's life - save for some exceptions around
mandatory education and maintaining basic health. That means whom she
associates with, and how images of her taken are used save for those taken of
her while in public and not under duress of compulsion. Why is that so hard to
understand?

~~~
nitrogen
Teenagers also have the right to live lives that allow them to experience the
world on their own terms and to learn from their experiences. Overly
controlling parenting is ultimately detrimental to teenagers' development. Why
is that so hard to understand?

~~~
lr4444lr
That may be part of good parenting, but teenagers simply do not have that as a
"right". The OP asked simply "What is the rationale behind defining child porn
age < 18?" I gave the rationale, and people are jumping to all sorts of
conclusions about the day to day reality of how I raise children. The law in
these matters is about objectively boundaries.

Perhaps the age of majority ought to be changed, perhaps the placement of all
convicted on the registry ought to be lifted, perhaps the record ought to be
sealed if good behavior can be maintained for X number of years, but these are
all "oughts".

Write to your legislators and put your morality into law if you want to see
changes. Don't ask judges to use their discretion and open the door to
widespread Brock Turner justice.

------
will_brown
When I was in law school I worked on a Florida legislative project to bring
forward a version of Romeo & Juliet laws to Florida [1]. For example there are
cases where 17 year old girls become registered sex offenders for life due to
relationships with their 16 year old boyfriends (whom they have married in
some cases). These types of cases have made it to the SCOTUS. Challenging on
the grounds of cruel and unusual punishment and double jeopardy, and upheld by
the court.

It goes without saying civil and criminal child abuse, neglect, and
abondonment cases are as difficult as any to stomach. But there are famous
case of parents with "bathtub" framed photos of their kids on their hallway
walls and grandfathers with pictures of their grandchilds running through
sprinklers, and as you might imagine they were painted as the devil incarnate.

Our law clinic was very aware the issues of text messaging even then, 2006. At
the time we used the Socratic method to debate the logic and human aspects of
charging the young children guilty of originating "sext messages" of
themselves. My position was always that such a law would chill the indemnity a
victim needs to come forward.

One of the major issues is that many of these crimes are under the _strict
liability_ [2] standard meaning if the pictures exist, the defendant is
guilty, notwithstanding their intent.

[1]
[https://en.m.wikipedia.org/wiki/Statutory_rape#Romeo_and_Jul...](https://en.m.wikipedia.org/wiki/Statutory_rape#Romeo_and_Juliet_laws)

[2]
[https://en.m.wikipedia.org/wiki/Strict_liability](https://en.m.wikipedia.org/wiki/Strict_liability)

------
zaroth
The idea that it is constitutional to charge someone with a felony for taking
a picture of their own body is absurd. The judges were just too chicken to
strike the entire statute. Actually, my apologies, that's unfair to the
chicken.

~~~
zaroth
Let me add - transmitting a photo of your genitals to someone uninvited is
pretty awful, and should be illegal for a completely different reason.

So no mistake about this guy. The bigger question is if it was intended to be
received by the adult, are they _both_ guilty? Or just the adult at that
point?

It seems to me the biggest hinge with this case is that the recipient didn't
want the pic and actually called the cops herself.

Would be much more satisfying if they would have charged and proven that he
assaulted the woman and just stuck with that.

The courts are saying there must be a legislative fix. What's the chance they
actually fix it?

~~~
kelnos
> transmitting a photo of your genitals to someone uninvited is pretty awful,
> and should be illegal for a completely different reason.

We should really cover this sort of thing under the existing indecent exposure
laws.

------
dv_dt
This is a symptom of how I think Republicans and many neoliberal Democrats
have basically reduced our government to systematically stop recognizing
compassion as a function. All that is left is possession (property rights),
and punishment (criminal enforcement). Charity and compassion are seen as some
exotic thing that tend to belong in the personal sphere, not something that is
a government function in society.

------
21
What other things that you can do to yourself are illegal? Suicide. Abortion
in some places. What if I cut a piece of my body and eat it, is that
cannibalism?

~~~
mrsteveman1
> What if I cut a piece of my body and eat it, is that cannibalism?

I think at that point, you're likely to be involuntarily committed anyway :)

~~~
dllthomas
What if it's a fingernail?

------
pharrington
"the Court found the prohibition of images that appear to be, but are not
actually, minors improper; any harm stemming from those false images “does not
necessarily follow from the speech, but depends upon some unquantified
potential for subsequent criminal acts.”"

Washington SC: "He claims any potential harm in his case is just as attenuated
and vague as Free Speech Coalition. Because no harm was done, he should have
the same right as any adult to take voluntary photographs of his own body. We
do not find this argument persuasive."

Am I correct in reading this as the court basically saying "The defendant
presents a solid argument. We don't care." ??

------
odammit
Well Snapchat is surely screwed. There goes their second most popular snap
after putting cat ears on a fidget spinner.

~~~
heartles
Implying that Snapchat is mostly for sexting is doing a disservice to the
platform, isn't it? In my experience (which is just an anecdote, idk if there
are stats on this) Snapchat has been ~95% showing dumb jokes to friends

------
quuquuquu
Everything is a crime in our neo-puritan state.

Congrats, two 17 year olds sending pictures of themselves consentually = child
porn.

What I also couldn't understand from the article:

A picture of someone who is an adult, but is /pretending/ to be a minor is
also child pornography?

What?!

Pornhub.com will need to take a hard look at some of its content providers
then.

Or does it not apply to Montreal based companies?

What if the servers are in the US? What if the client is in the US?

Lunacy.

~~~
eighthnate
> Everything is a crime in our neo-puritan state.

What is strange is how today's puritanism is coming from the left rather than
the right.

Growing up as kid, I remember christians and conservatives attacking "Married
with Children", "Simpsons", "Beavis and Butthead", "Southpark", etc. Even as
an elementary kid, I remember associating christians/conservatives with
censorship and for most of my life identified myself as a liberal.

The past few years, I've given up on liberals too as they are now pushing
their form of censorship under the aegis of "social justice".

> Congrats, two 17 year olds sending pictures of themselves consentually =
> child porn.

It's even worse that isn't it? If a 17 year old takes a picture of herself on
a smartphone and sends it to herself on her other accounts, then she's guilty
of distributing child porn. Technically, isn't she guilty of distributing
child porn of herself to herself?

~~~
quuquuquu
Re: your last point, I hope the God I don't believe in helps us...

At this point, if they spend time going after people for that type of
technicality, then it's only a matter of time before they get all of us in
prison for something.

70m people in the USA have a criminal record of some kind.

The more victimless crimes we have, the more power we will lose.

------
dingo_bat
Since almost all of us agree that sexual preference is something that is
innate, we cannot consciously affect it significantly, isn't it wrong to
prosecute pedophiles? IMO, these people should be treated with pity, not as
criminals. If we do that, all these absurdities will disappear automatically.

Of course, coercion is still illegal, and coercion of a minor would carry
higher criminal penalties. But distribution of content does not automatically
imply coercion or violence.

But sentencing somebody to prison for looking at cp is akin to sending gay
people to prison.

~~~
PhasmaFelis
I absolutely agree that we shouldn't prosecute people for being attracted to
children. Seeking out and looking at live CP (as opposed to cartoons) is
another matter, because looking at someone's naked body without their consent
is always a violation. There will always be a grey area around age of consent,
but we have to draw the line somewhere, and I'm quite comfortable with the
idea that a 10-year-old cannot meaningfully consent to being in porn.

------
ikeboy
Should note the sentence here was 30 days + community service.

~~~
readams
The real punishment in cases like this is sex offender registration and a
record, which is basically the end of your life.

~~~
ikeboy
He had been required to register as a sex offender for a prior unrelated case.

~~~
readams
In this case he had a prior registration for something that's unclear but the
new sentence also included registration.

------
microcolonel
> _He claims any potential harm in his case is just as attenuated and vague as
> Free Speech Coalition. Because no harm was done, he should have the same
> right as any adult to take voluntary photographs of his own body. We do not
> find this argument persuasive._

Given how persuasive this argument is, I am a bit surprised that the court was
not persuaded. I understand that Ashcroft v. Free Speech Coalition has some
distinguishing factors, like the fact that the depictions in question were
clearly distinguishable from records of a crime (on account of them not being
photographic images of actual minors).

This is a messy and complicated business, it seems like there needs to be a
legislative solution since the supreme court can not find what most people
consider a just outcome in an interpretation of the statute.

------
crb002
Didn't Ron/Rand Paul have a proposed bill to limit punitive action on
structural crimes (crimes committed structurally due to them being under age):
this, alcohol in possession of minor, curfew violations, ... ?

------
c3534l
The ruling is correct, but the law is stupid.

~~~
sethammons
Jury Nullification is always an option.

~~~
c3534l
There was no jury. This was a Supreme Court ruling.

~~~
rothbardrand
Which is inexcusable. The Supreme Court is clearly corrupted and failing at
its one job.... which is to shut stuff like this down and be a check on the
irresponsibility of the legislative and executive branches.

~~~
c3534l
The Supreme Court's role is not to change the laws when they seem unjust, it's
to provide a clear and coherent interpretation of them. The Supreme Court
oversteps its constitutional bounds when it starts to ask what the law should
be rather than what it is.

------
WCityMike
The title of the piece is a bit click-baity, as the court opinion specifically
states, as the article notes in its last paragraph, that “because [Gray] was
not a minor sending sexually explicit images to another consenting minor, we
decline to analyze such a situation.” The title is stated as a fact, wherein
it is really the columnist's opinion: "I think that — given the logic of the
majority opinion — the analysis would have to ... "

------
pgnas
as a parent and also someone who was a child at one time I can see that kids
make all kinds of mistakes. I mean, I seriously don't even ask why sometimes
because I know the answer I'm going to get will not make any sense.

I'm very lucky and I have some wonderful children I cannot see them going out
and doing something like this however people do stupid things. I don't think
charging someone with something that is going to stick with them for the rest
of their life for something that they did when they were 13 ,14, 17 years
old.. they are kids and their brains, hello all you scientists out of there,
are not even fully developed.

Listen, if a 17-year-old child sent an explicit image to my daughter I would
be over at the parents house faster than you can imagine. That kid obviously
needs a swift kick in the ass, he or she does not deserve to be charged with a
crime will follow that person for life.

If we continue to charge children as adults, kids that are 13,14,15 or 17,
then we might as well change the age of when you are an adult to 13 years old.

has anyone given any consideration to the crap that these kids are bombarded
with on a moment by moment basis on television in music and all entertainment,
it is hyper sexualized. What do you expect your children to do when they are
faced with this?

The sad situation and I don't agree with the stupid thing that this kid did in
the stupid things the kids are going to do but they are kids! Come on now,
haven't we seen cases recently where adult pedophiles have been let off? Are
we going mad?

~~~
jaclaz
And as a side note, someone has to consider how in some parts of the US you
can legally drive a car at 14 or 15 (of course with some limitations, but not
that many), at 16 or 17 you can get an airplane or helicopter pilot license,
yet you become of age at 18 and you cannot drink beer or get an unrestricted
commercial driver's license before turning 21.

Somehow these age limits sound contrasting each other.

------
lisper
Previously submitted:

[https://news.ycombinator.com/item?id=15255290](https://news.ycombinator.com/item?id=15255290)

------
myrandomcomment
This is 100% mis-read of what this said. The court said "this is the way the
law is written, it sucks, but this is the law as written."

~~~
myrandomcomment
Also as a follow up - this is our fault. We elect the people that write the
laws. The courts job it is to check the law constitutional. We have this
illusion that the court is there to think better then those we elect, which is
not the case. If you are outraged by this then pay some attention to who you
vote for.

------
Chiba-City
Why "prosecution" and not "investigation." There's a difference. It depends
upon an audience. What about self portraits? That's how photographers learn. I
had a Canonet and black and white film as a kid. I loved it. Asking questions
doesn't have threaten kids. Good kids will answer good questions. Have I
missed something?

------
mirimir
This was predictable, no? I mean, all those damn preteen cam whores! And
wannabe cam whores. And kids, having fun.

So what, in a decade or so, an appreciable percentage of young people will be
labeled as child pornographers?

------
whipoodle
We are out of our minds.

~~~
waqf
I cannot understand why Americans say "we" in statements like this. I'm not
out of mine (at least not with respect to this issue) and you're quite likely
not out of yours.

It's not noble to take responsibility for things when you have no control over
them and thus won't be able to fix them.

~~~
aiyodev
It's "we" as in "we the people". "We" are doing this because our elected
representatives appointed the people who made the decision. "We" collectively
bear the responsibility for what our government does. But there's a difference
between responsibility and guilt. Unless we voted for someone and knew this
would be the consequence, we shouldn't feel guilty.

~~~
waqf
I know, but I disagree and, moreover, I consider that a harmful belief. The
problem isn't that not every citizen of a democracy will agree with the
majority preference (I think people understand that caveat), it's that even
the majority preference of the population on a single issue is, for many
reasons, likely not what gets through the political process.

The "we" wording sweeps all these limitations of democracy comprehensively
under the rug: it diverts blame onto the people when it should rightly be
directed at the existing political order.

~~~
aiyodev
The people in the "existing political order" are put there by the public who
ultimately has the responsibility for creating good government. Again,
responsibility is not the same as guilt.

------
ada1981
I imagine this would also apply if a child took photos of himself and then
later, as an adult, sent those photos to someone?

------
mighty_bander
But will they be tried as adults? That is the question.

