When Does It Stop Being 'Sexting' And Start Being Something More Serious?

from the gray-areas dept

The debate about "sexting" rages on, both here at Techdirt and elsewhere. One of the major points of contention has been that child-pornography laws don't make any distinction about who creates child porn, meaning that kids who take nude photos of themselves and send them out can be viewed in the same way -- in the eyes of the law -- as child pornographers who abuse and exploit children for commercial gain or personal titillation. The catch is that "the eyes of the law" are really the eyes of human prosecutors, who hopefully should realize that charging kids with child-porn offenses is an overreaction. CNN's got a story touching on this issue, but they didn't find a particularly good example: instead of talking about kids who took pictures of themselves, they lead with the story of an 18-year-old guy who sent out a nude picture of his 16-year-old girlfriend to "dozens" of friends and family after they'd had a fight. The guy was subsequently prosecuted under child-porn laws and has had to register as a sex offender. While it's clear the guy wasn't a commercial porn producer, it's also clear that he went a lot further than teens who take photos of themselves, send them out, and then find themselves in hot water. His actions, while caused by a moment of stupidity, were intended to hurt his girlfriend -- much different than teens taking and sending photos of themselves as an expression of their sexuality. To compare the two seems pretty disingenuous, and it's hard to imagine the guy will attract a whole lot of sympathy, but the story does illustrate the very black-and-white world of child porn laws, and how they can be applied with little distinction (or perhaps common sense) by some prosecutors.

Meanwhile, over at the WSJ, the "Numbers Guy", Carl Bialik, has taken a look at the survey that has been widely cited in sexting stories, claiming that 20 percent of teens have taken and sent nude photos of themselves. Bialik points out that the survey was conducted online, calling into question just how representative of the wider teen population the sample was. To ask teens about their online behavior, but only ask teens who are online, seems suspect. But hey, the stat sells the story, right?


Reader Comments (rss)

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  1.  
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    self-appointed techdirt editorial staff, Apr 9th, 2009 @ 4:00am

    Seems it's more a temporary lapse in judgement...

    ...than something needing to be "something more serious".

    This article leaves me shaking my head. The headline misses the mark when it comes to the narrative. Carlo, usually your quite levelheaded and catch errors like this. I'm very disappointed. Either change the narrative to fit the title, or change the title to fit the narrative. It's not that hard.

     

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  2.  
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    kids these days, Apr 9th, 2009 @ 4:31am

    Take the cell's away, get them off the xbox, turn off the internet... put them outside, get them on a bike, go for a walk, talk with your kid at dinner, ask them questions, help with their homework....BE INVOLVED!

    That will help to prevent this kind of behavior!

     

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  3.  
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    trollificus, Apr 9th, 2009 @ 4:48am

    Yeah, I was surprised to see Carlo's name there. He's usually one of the most insightful contributors I run into (here and elsewhere).

    Several problems, going beyond the title.

    a) It is an uncharacteristically GOOD thing that CNN used a thought-provoking case from the margins of this debate. Only propagandists want clear-cut examples that illustrate "their side" of any issue.

    b) Like so many, Carlo here seems almost disturbingly comfortable with teens "expressing their sexuality" in this digital manner. So where's the slippery slope here?? Thirteen-year-olds doing it?? Eleven-year-olds?? In a priggish era that can generate moral approbrium against smoking, attitudes towards black culture and the efficiency of one's car engine, can't we at least entertain the idea that AT SOME AGE, modesty is a good idea?? Or do people even register that concept any more?

    c) The second link reveals that the 20% figure quoted was more like "20% of the top 20% of tech-savvy kids", included 18 and 19-year-olds, and included "semi-nude" which could mean mere open blouse, panties-on, or bare-chested male "sexting". I guess nobody at any point on any side of this issue can avoid sensationalizing it...

     

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  4.  
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    Paul`, Apr 9th, 2009 @ 4:56am

    Re:

    To point b, you are off the mark here. Sure, there is an issue with kids as young as 13 taking and sharing nudes and it doesn't read like Carlo says otherwise. His point of view seems to be that this isn't child pornography in the way that the current laws are set up to stop.

    They should hardly be registered as sex offenders for this behaviour.

     

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  5.  
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    lol, Apr 9th, 2009 @ 5:04am

    The WSJ article displayed on the tab as "Sexting-an epidemic of fuzz..."

    It expands to "fuzzy thinking", but still...lol.

     

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  6.  
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    trollificus, Apr 9th, 2009 @ 5:31am

    Re: @Paul

    You may be right. I've seen so many leeringly celebratory stories about sexting I may have read more into Carlo's comments that I should have.

    And I agree we should NOT be branding a scarlet "P" on these kids'...but then, the whole question of what constitutes an exploitative or predatory or pathological sexual relationship is probably not reducible to a birth date, and is almost certainly beyond the ability of our legislators to define wisely.

    Unfortunately, the far end of the curve is so unacceptable that it constitutes low-hanging fruit for our politicos, and collateral damage from their clumsy, self-serving efforts at remediation is almost unavoidable.

     

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  7.  
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    Anonymous Coward, Apr 9th, 2009 @ 5:46am

    To ask teens about their online behavior, but only ask teens who are online, seems suspect. But hey, the stat sells the story, right?

    Why would you ask teens that are not online about their online habits? Wouldn't that be like asking a vegetarian about what steaks they like the most?

     

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  8.  
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    Ima Fish, Apr 9th, 2009 @ 5:50am

    "One of the major points of contention has been that child-pornography laws don't make any distinction about who creates child porn, meaning that kids who take nude photos of themselves and send them out can be viewed in the same way"

    Finally this simple fact is accepted. Great. Now we can move the discussion forward.

    The solution to this problem is not to rely upon the discretion of the prosecutor to do the right thing and decide not to follow the law in some instances. This is child porn. Prosecutors are elected officials. There is simply no way an elected official will allow himself to be seen as soft on child porn.

    We have to take away the discretion of the prosecutors to charge these kids by changing the laws.

     

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  9.  
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    Droslovinia, Apr 9th, 2009 @ 6:00am

    CNN?

    I stopped watching CNN a long time ago, when they proved they'd stop at nothing to be like Fox.

    Still, why should we have any sympathy for that 18 year old again? He got mad at his girlfriend so he committed a federal crime against her. But that's supposed to be okay because it clearly wasn't the same as if he did it for money? So if some other 18 year old decides to shoot his 16 year old ex-girlfriend, it will be okay because it's not like he's a hit man or anything? If he breaks into her house and steals all her stuff, that would be okay, since he's not a professional burglar? Can he run her off the road, since he's not a professional driver, or beat her up, but not like a pro boxer would? The guy committed a serious crime against a minor, so how does this fit into any argument about excessive prosecution?

     

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  10.  
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    Weird Harold, Apr 9th, 2009 @ 6:35am

    Carlo, I am amazed sometimes where you go with these things.

    The guy has naked pictures of his underage girlfriend. He is an adult. Already, this isn't good, but that is one of those "between a couple" things that many of us would let slide. But this knuckle dragger thought it would be a good idea to forward the pic(s) to his friends? I wonder how many of them passed the pics on to thier friends, or randomly added them onto an internet site, created a "erotic services" craiglists ads with the pics, or whatever.

    On a site that goes on and on about the "infinite" distibution model, you don't seem to think past the end of your nose on issues like that.

     

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  11.  
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    Anonymous Coward, Apr 9th, 2009 @ 6:39am

    Re:

    I suppose trollificus really is trolling or is just fairly naive. I don't know what world you live in, but puberty can start as early as age 9 (for girls, they get a head start). Usually, its at age 13/14 and doesn't stop until the early twenties.

    The point to bringing this up is just to show that using biology to determine who is an adult just doesn't work. People are usually considered "adults" in a legal sense at age 18, 2-4 years before they are biologically an adult.

    So that leaves us with either traditions that are based on instinct or trying to determine what age most people become mentally mature enough to handle adult responsibilities.

    The latter is probably the "best" way to do it, but it has its own problems due to the ambiguity of mental maturity. Some arrive there quite early, others quite late, and some never fully do. A handful at 15, and most at 16-17 years is when humans start becoming emotionally mature enough to handle sex, or at least honestly desire to have it.

    Which brings me to the first option I mentioned, tradition based on instinct. Historically, people were getting *married* at age 14-16. And not all THAT long ago in the grand scheme of things. The life expectancy was much shorter, and for some reason when that extended the length of time for children to be "children" was extended as well.

    Instinctively, we males are sometimes attracted to females that are young and attractive. This should not be news to anyone. While I personally find it a little creepy in most cases, I don't see anything completely horrendous with a 16 year old expressing his/her sexuality. But then I have no illusions, I know that experimentation starts at 14/15.

    Personally, I think there is no way we can arrive at a perfect solution. I think that the "age of consent" (which is between 15 and 18 in the US, most states have it at 16) is when the cut off for "child pornography" should be made. If they're allowed to have sex, they're allowed to take photos of themselves doing it.

    Don't like it? Well laws are made to be changed as society deems it so put it to a vote. But making someone a sex offender because they are a Jr or Sr in **High Scool** and had sex with their boy/girl friend is just fucking stupid and a grave injustice.

     

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  12.  
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    Anonymous Coward, Apr 9th, 2009 @ 6:40am

    Re:

    You can take my life but you will never have my cell, xbox or internets!

     

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  13.  
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    scruffy, Apr 9th, 2009 @ 7:02am

    It doesn't sound like there's any porn here because

    nudity is not pornography.

     

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  14.  
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    Amos, Apr 9th, 2009 @ 7:24am

    They should be arresting their parents for child porn and send them to jail, Then maybe the parents will start being parents by being involved in their life and raising them properly to not do this kind of garbage but unfortunately too many parents these days want to be their kids' friends instead of their parents. If a kid is raised right and has good parents they wouldnt even consider doing things like this.

     

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  15.  
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    Michael, Apr 9th, 2009 @ 7:36am

    The bigger issue

    Seems to me that the bigger issue here is that the pool of branded child predators is becoming diluted. Used to be, you were caught with child porn, you were a perv and you had it coming, but now there are so many teen romeos added to the list, it becomes easier and easier to pooh-pooh the child porn label and blame it on a youthful misjudgment.

    The only way around this is for the courts to start taking these on a case by case basis, and get the child romances out of the predator database. Handle them differently, and judge each case upon its own merits, but don't lump them in with the real child predators that are the problem.

     

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  16.  
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    DCX2, Apr 9th, 2009 @ 7:46am

    Re:

    b) Like so many, Carlo here seems almost disturbingly comfortable with teens "expressing their sexuality" in this digital manner.

    It is more likely that Carlo is "disturbingly comfortable" with the idea of not punishing victimless or self-inflicted crimes. When one is defending the rights of anyone to do whatever they want to themselves, it does not necessarily mean that one wants to engage in the behavior one is defending.

    Defending gay marriage does not make you gay. Defending prostitution does not make you a john. Defending drugs does not make you a junkie. Defending teenagers who take nude pictures of themselves does not make you a pedophile.

     

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  17.  
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    DCX2, Apr 9th, 2009 @ 7:51am

    Re: Re: @Paul

    the whole question of what constitutes an exploitative or predatory or pathological sexual relationship is probably not reducible to a birth date, and is almost certainly beyond the ability of our legislators to define wisely.

    Unfortunately, the far end of the curve is so unacceptable that it constitutes low-hanging fruit for our politicos, and collateral damage from their clumsy, self-serving efforts at remediation is almost unavoidable.


    Wow. I am in awe of that comment.

    Regardless, I think the reason this story is interesting is because, at the time of the picture, there was no exploitative/predatory relationship with the girl. Therefore, charging this guy with CP is over-kill in my opinion, and the girl should be given the same opportunity for recourse that any other jilted lover would be offered by the court system for a similar scenario. This is, in my opinion, keeping with the spirit of prosecuting CP to protect kids from predators and such.

    Still, the fool should have known better than to send a pic of a nude minor to anyone.

     

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  18.  
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    DCX2, Apr 9th, 2009 @ 7:58am

    Re: CNN?

    He got mad at his girlfriend so he committed a federal crime against her. But that's supposed to be okay because it clearly wasn't the same as if he did it for money? So if some other 18 year old decides to shoot his 16 year old ex-girlfriend, it will be okay because it's not like he's a hit man or anything?

     

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  19.  
    identicon
    DCX2, Apr 9th, 2009 @ 8:00am

    What teen isn't online?

    Meanwhile, over at the WSJ, the "Numbers Guy", Carl Bialik, has taken a look at the survey that has been widely cited in sexting stories, claiming that 20 percent of teens have taken and sent nude photos of themselves. Bialik points out that the survey was conducted online, calling into question just how representative of the wider teen population the sample was.

    I think you'd be hard-pressed to find teenagers in the United States who aren't online...sure, there are probably some, but my guess is that the vast majority use the Internet.

     

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  20.  
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    DCX2, Apr 9th, 2009 @ 8:03am

    Re: CNN?

    (that's what I get for not hitting preview...)

    He got mad at his girlfriend so he committed a federal crime against her. But that's supposed to be okay because it clearly wasn't the same as if he did it for money? So if some other 18 year old decides to shoot his 16 year old ex-girlfriend, it will be okay because it's not like he's a hit man or anything?

    What if the girl in the picture was 18? It's not CP anymore.

    Shooting someone is a crime regardless of their age.

    In my opinion, since they were in a relationship, and the picture was not exploitative or predatory, a charge of CP is over-kill. However, I'm sure an 18 year old whose picture was passed around without permission would have some recourse in the legal system. This girl should have the same recourse.

    Now, if he was passing the pic around because she was 16 and he wanted to help some pervs get their jollies, this is a bit different. But if he passed the pic around NOT because of her age but instead because of spite, I don't think CP should apply.

     

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  21.  
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    Paul Brinker, Apr 9th, 2009 @ 9:25am

    Context

    After reading all the arguments one thing is vary appernt, Context needs to be taken into account. From what I understand right now its like this:

    Any photo of someone under age in a "possably" sexual situation is illegial and proof enough to send you to jail for a long time.

    What we need is something like this:

    Photos of obviously underage childern found in a obiviously sexual context should be consitered CP.

    The reason for this is context, a single photo found on a hard drive in your internet temp files mixed with lots and lots of normal porn does not meet the context requirment. For the same reason parrents taking naked baby photos now fail the test.

    We need this because the issue is being forced, CP charges for the most minor things is the legal systems way of saying the law does not make sence. That or we need to educate the US about Jury Annulment of the law (if everyone knows then you cant use it as reason to remove a Jury member).

     

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  22.  
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    Anonymous Coward, Apr 9th, 2009 @ 11:51am

    The Rule of Law

    One of the major points of contention has been that child-pornography laws don't make any distinction about who creates child porn,

    That's right, that's the way the law is intended to be. The law should apply to everyone and no one should be above it.

    The catch is that "the eyes of the law" are really the eyes of human prosecutors, who hopefully should realize that charging kids with child-porn offenses is an overreaction.

    No, it's not an "overreaction", it's the law and prosecutors should not practice "selective enforcement". That leads to all kinds of abuse. If you're going to do that then you might as well just make everything illegal and then leave it up to prosecutors to practice selective enforcement. No, the law should be enforced as written. If the lawmakers wanted to exempt kids they could have easily done so. They didn't.

     

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  23.  
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    Sex Offender Issues, Apr 9th, 2009 @ 4:25pm

    Insanity!

    I think it's pathetic that the laws that were meant to protect children, they are now using to ruin them as well. See this link for many more children (04 - 18 years old), who have been ruined for insane reasons. http://sexoffenderissues.blogspot.com/2007/12/child-sex-offenders.html

     

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  24.  
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    Tetsubo (profile), Apr 9th, 2009 @ 4:29pm

    As someone else pointed out, nudity is not pornography.

    If America would free itself of its Puritan shackles life would be so much more sensible.

     

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  25.  
    identicon
    known coward, Apr 10th, 2009 @ 8:09am

    stupid people make stupid laws

    nuff said.

     

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