Prosecuting Minors for Child Pornography

I recently ran across an article that raised some of the same issues I’ve been thinking about with regard to charging minors with possessing and disseminating child pornography. You can find that article here.

Four years ago, a 15-year-old Pennsylvania girl who allegedly posted “photographs of herself in various states of undress and performing a variety of sexual acts” online was charged with sexual abuse of children, possession of child pornography and distributing child pornography. Teen Girl Charged with Posting Nude Photos on Internet, USA Today (March 29, 2004). I’ve read about similar cases being filed elsewhere in the U.S. and in other countries, as well.

Now, as you may know, the problem is being compounded by cell phones. According to the article I mentioned earlier, this past May a 17-year-old Wisconsin boy was charged with possessing child pornography and sexual exploitation of a child after he posted “naked pictures” of his 16-year-old girlfriend “from his cell phone onto MySpace.” And you may have seen the stories that have been published recently noting hwo common it is for teen-agers to use their cell phones to send nude pictures of themselves to other teen-agers.

The problem, as that article I mention above notes, is that we don’t have a loophole, an exception for minors who create and disseminate what is literally child pornography. It quotes a Pittsburgh police detective who notes, quite correctly, that creating and disseminating child pornography is a crime, and the law “`doesn’t say anything about the age of the person who does it.’”

Should it? That’s something I’ve been thinking about for a while, and it seems to me there are two aspects of this issue, neither of which has been addressed by our law.

Before I get to the two issues, let me briefly review the nature of the “crime” we’re talking about here. As I explained in an earlier post, child pornography is visual material (e.g., photos, videos) the contents of which would not be criminalized if they depicted adults, instead of minors. The Supreme Court held over thirty years ago that child pornography can be criminalized even though it is not obscene (obscenity is criminalized because of its content, even though it involves adults) because the production of the material victimizes children.

According to the Court, child pornography laws criminalized two “harms:” One is the physical and emotional abuse children suffer in the creation of child pornography; the other is the emotional injury they suffer as the material, which records their victimization, continues to be circulated. The legal justification for criminalizing child pornography, then, is that its creation “harms” children.

That brings us to the two aspects of the issue I noted above: One is the situation in which child pornography is created by a child (production of child pornography) who then distributes it (dissemination of child pornography). Production and dissemination of child pornography are both crimes because of the rationale I noted above, i.e., when adults use children to create the stuff, and then disseminate it, the children are victimized.

The issue that I think is being raised now is whether that is true when it is a child who creates and disseminates material that is, literally, child pornography. The argument here is, or would be, that there is no “victim” because the child consensually creates the material and then distributes it to others. If there is no victim, the argument goes (or would go), then there is no need to bring charges and, indeed, no one to be charged.

If a prosecutor were so inclined, he or she could respond to that argument as follows: The child does not have the ability to consent to the creation of child pornography. We have the crime of statutory rape because the law does not consider that children under the age of 18 (often, can be lower in some jurisdictions) are mature enough to be able to consent to sexual relations. So, statutory rape is sexual intercourse between two people, one of whom is over the age of consent (19, say) and the other of whom is not (is 17, say, in a jurisdiction where the age of consent is 18). A prosecutor could then use this analogy to say that, by extrapolation, a child cannot consent to . . . what? . . . making child pornography?

I don’t think that counterargument works. I, personally, think our statutory rape laws are out of whack, an artifact of a different time and a different culture. But we have them, so I’ll assume they continue to exist and continue to be accepted as valid. The premise of statutory rape statutes is that minors (those under the age of consent) as a category do not have capacity to consent to sex. We therefore protect all of those in that category by presuming incapacity and prosecuting those who ignore the presumptive incapacity. We in a sense assume victimization here; that is, we in a sense assume that the person over the age of consent takes advantage of the younger partner (which is where I begin to have reservations, personally).

In the instances where a minor produces child pornography purely on their own (I’m not talking about instances in which an adult with whom they are chatting online persuades them to do so), we do not have that presumed victimizer. We have a child committing a crime against herself or against himself, which seems absurd.

I don’t know of any legal principle that says you can’t commit a crime against yourself. Suicide used to be a crime, so they used to prosecute people who tried but failed to kill themselves (how insane is that?). In the twentieth century, though, our society decided that was a really stupid way to approach things, and so decriminalized suicide. That might be somewhat relevant here.
The other analogy that comes to my mind is a provision in the Model Penal Code which, as I’ve said before, is a template of criminal law that has influenced U.S. criminal law at the state, and even the federal, levels.

In its provisions on accomplice liability, the Model Penal Code says the victim can’t be an accomplice. An accomplice is someone whose conduct facilitates the commission of a crime; so if you tell me you want to rob a liquor store and I give you a gun you can use to do so, I’m an accomplice to your robbing the store. Even though I wasn’t there when it happened, I facilitated it and so I become liable for the crime as if I had committed it myself; as I tell my students, an accomplice stands in the shoes of the perpetrator, has the same criminal exposure as the one who carries out the crime.

The drafters of the Model Penal Code said that someone who is a victim of a crime is not an accomplice. So someone who is raped is not an accomplice of the rapist; someone who is robbed is not an accomplice of the robber, and so on. It seems to me one might argue by extrapolation that if a victim can’t be an accomplice, then they certainly shouldn’t be held liable as a perpetrator.

Is there a victim when a minor features himself or herself in nude or sexually explicit photos and puts them online? If there isn’t, do we have a crime? Should we then create some kind of exclusion of liability for minors who create child pornography featuring their own images? Should we give them a pass or simply reduce the level of criminal liability they face? Or maybe we should come with an entirely new crime?

I don’t have the answers to any of those questions, but I certainly think we should be asking them.

Before I end this post, I want to note the other aspect of this issue: Last year, an Arizona teen-ager named Matthew Bandy was charged with possessing child pornography in a high-profile case that caught the attention of ABC News, among others. His parents hired a computer forensics person and raised a version of the Trojan horse defense; that plus other circumstances resulted in his eventually pleading guilty to a lesser charge.

When I read about that case, I wondered: Bandy was 16 years old. If a 16-year-old (or a 15-year-old or a 14-year-old) looks at child pornography that involves images of girls not that much younger than he is, is that the same as an adult male’s looking at the material? In other words, does it matter if it’s teen-agers looking at other teen-agers? Does that somehow inflict a lesser “harm” (or nor “harm”) than if an adult looks at the stuff? Should we institute some kind of lesser offense for this situation, one that would let the prosecution bring charges but that would not result in the teen-ager’s facing serious jail time and/or the possibility of being labeled as a sex offender?

I don’t know. I’m just asking.