We must destroy the children in order to save them

[Dominus Atheos]

https://www.washingtonpost.com/news/the ... save-them/

We must destroy the children in order to save them

My colleague Tom Jackman’s story about the efforts of officials in Northern Virginia to forcibly induce an erection in a teenage boy in order to pursue “sexting” charges against him has deservedly provoked national outrage. As Jackman points out, Manassas police have since backed down and now say that they won’t execute the warrant. Of course, there remains the problem of why the warrant was issued in the first place. No one in the Manassas Police Department, the office of Commonwealth’s Attorney Paul Ebert or the judge who signed off on the warrant was able to see what the rest of the country saw, here: an outrageous abuse of power and an unfathomable violation of this kid’s privacy. The Commonwealth of Virginia was prepared to create child porn in order to prosecute a 17-year-old kid for sending videos of himself to his then-girlfriend, who was 15 years old.

There’s a lot going on in this case. We can start with Paul Ebert, a dinosaur of the Virginia criminal justice system. I wrote a bit about Ebert’s history in a previous post here at The Watch about prosecutorial misconduct. The general takeaway is that Ebert, who has been in office for more than 40 years, has a long and sordid history of poor judgment yet has never been sanctioned or disciplined for his conduct. In 2011, his office was the subject of a blistering opinion by the U.S. Court of Appeals for the 4th Circuit. As Andrew Cohen points out in the linked article, it wasn’t the first time that has happened.

But the most pressing concern here is why this kid was pursued with such vigor in the first place. The very notion that the state of Virginia would need to sexually exploit a minor in order to protect minors from sexual exploitation serves as a tidy microcosm of the “sexting” debate in general: Too many schools, police, judges and prosecutors have concluded that we must destroy these kids in order to save them.

Hormonal teenagers have been showing their bodies to one another since there have been teenagers and hormones. Sexting adds a third element to the mix: technology. Teens, sex and technology. Any two of those can spark a media frenzy and reactionary public policy. Mix all three, and you’ve got a recipe for full-blown moral panic. For a great example of how this can affect a kid, see Nancy Rommelman’s terrific 2009 piece for Reason magazine, “Anatomy of a Child Pornographer,” which took an in-depth look at one such case in upstate New York.

Perhaps the best example of the absurdity of this approach is a 2007 case in Florida, in which a 16-year-old girl and a 17-year-old boy were convicted of “directing or promoting a photograph featuring the sexual conduct of a child” and possession of child pornography for e-mailing explicit photos to one another. The two hadn’t broken the law by having sex, only by creating, sending and possessing photos of their sex. In upholding the convictions, a Florida appellate court judge wrote, “Mere production of these videos or pictures may . . . result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives.” The state of Florida had to protect these two minors from the theoretical damage to their lives or careers that might have been done had the photos been released by turning them into convicted child pornographers.

In a 2009 case, the Iowa Supreme Court upheld the conviction of an 18-year-old man who had sent a photo of his penis to a 14-year-old girl, who had requested it. Both parties said the entire episode was a joke, and there was no evidence presented that the photo had traumatized the girl. The man clearly showed poor judgment, but his conviction came with the requirement that he register as a sex offender. You can see the motives at work behind these cases in a statement Pat Trueman, an attorney for a religious advocacy group, gave to a local TV station after the verdict:

“This was a serious offense. He was producing obscenity and distributing obscenity, and to a minor at that. . . . But he also has to register as a sex offender — and [he] may be on that sex offender registry for a lifetime. So if anyone had any doubts, sexting is a very serious crime — and kids better get to know that.”

Note that Trueman defines the seriousness of the crime not by the amount of harm inflicted on victims or the damage the act itself does to society but on the seriousness of the punishment that lawmakers have attached to it. We should know by now that when drawing up crime legislation, lawmakers aren’t always engaging in a careful consideration of costs, benefits and the proper role of punishment in a criminal justice system. They’re often driven by outrage, media frenzies and a flare-up of we have to do something syndrome. (See also: laws named after dead people.)

Also in 2009, an Indiana prosecutor defended the felony charges he brought against a 14-year-old accused of “sexting,” explaining, “We’re doing these kids a favor by bringing charges, because it will encourage them to be more discreet.” (Jacob Sullum posted on yet another series of cases from 2009 here.)

The argument in favor of saving children from sexting is that the photos could wind up in the hands of a sexual predator. Perhaps that has happened, but I’ve followed this issue for several years, and I don’t recall a single such incident, much less a trend of them. I don’t think anyone would argue that it’s a good idea for minors to send explicit photos of themselves to one another. But there’s simply no evidence that the harm they’re imposing upon themselves by doing so justifies treating them as criminals.

In 2010, the U.S. Court of Appeals for the 3rd Circuit returned some sanity to the discussion by blocking a Pennsylvania prosecutor from using the threat of felony charges to force three girls to attend a six-month “educational program” about teenagers and sex. In this case, the girls weren’t even nude. The court sensibly found that the prosecutor was infringing on the parents’ right to oversee the upbringing of their own children. (Leaving this issue to parents to handle — imagine that!) In a rare bit of political comeuppance for prosecutorial overreach, local outrage over the case cost District Attorney George Skumanick Jr. reelection.

There are other issues at work here, too. In an effort to register their contempt for child exploitation and sex crimes, lawmakers have defined sex offenses so broadly that a teen sending an explicit photo to a boyfriend or girlfriend can qualify. Typically, when critics point out that a new law could be used in ways lawmakers never intended, supporters point to prosecutorial discretion. They argue that it’s ridiculous, even insulting, to suggest that a prosecutor would twist a law to bring charges against someone in ways the law clearly never intended — or that a judge would allow it. That police, a prosecutor’s office and a judge all saw nothing wrong with forcibly inducing an erection in order to pursue charges against a 17-year-old kid puts the lie to that argument.

Sex isn’t the only context in which we’re ruining kids under the pretense of saving them. We’re protecting kids from drugs by arresting and jailing them for marijuana possession. We’re protecting them from the (mostly nonexistent) problem of school violence by assigning law enforcement to patrol middle and high school campuses. The presence of law enforcement means that kids who were once reprimanded, assigned detention or possibly suspended for infractions such as fighting, throwing food or truancy are now fed into the criminal justice system.

And that’s the final lesson here. These stories are all symptoms of our increasing tendency to use the criminal justice system to “fix” the sorts of problems once addressed by families, schools, religious organizations and other civic institutions.

Perhaps the best thing we can do to help kids right now is to stop the people who are trying to save them.

[blowfish]

Pour encourager les autres

[TheHammer]

Clearly there needs to be some sort of reforms there. I don't believe outright legalization is the answer, because some of the concerns listed are valid, but the punishment is absolutely counter-intuitive and in no way fits the crime. Kids who send nude photos of themselves, or video themselves having sex should have their phones taken away, and possibly counseling, but they should not be convicted sex offenders.

[Pelranius]

And what's the age difference between two underage kids for sexting (or other sexual activity) to become a crime?

Prosecuting a 16 year old for sexting a 15 year old probably isn't as serious as a 16 year old sexting a 12 year old?

[General Zod]

And what's the age difference between two underage kids for sexting (or other sexual activity) to become a crime?

Prosecuting a 16 year old for sexting a 15 year old probably isn't as serious as a 16 year old sexting a 12 year old?

Most states allow a 2 or 3 year age gap. So an 17 year old and a 15 year old might be okay, but usually parental consent is required.

[TheHammer]

And what's the age difference between two underage kids for sexting (or other sexual activity) to become a crime?

Prosecuting a 16 year old for sexting a 15 year old probably isn't as serious as a 16 year old sexting a 12 year old?

Most states allow a 2 or 3 year age gap. So an 17 year old and a 15 year old might be okay, but usually parental consent is required.

Well the problem, as highlighted in the article, is that there is no differentiation on sending images based on the age of the recpient. The irony being that in many of these cases that having sex isn't the crime but "sexting", when it contains graphic images is. Its a logical disconnect that none the less exists to the detriment of the children it is supposed to protect...

[Coop D'etat]

And what's the age difference between two underage kids for sexting (or other sexual activity) to become a crime?

Prosecuting a 16 year old for sexting a 15 year old probably isn't as serious as a 16 year old sexting a 12 year old?

It depends on the offense they are charged under. If you are charged under that Florida child pornography statue age difference doesn't matter, you created and deseminated child porn by sexting, regardless of being a minor yourself.

[General Zod]

And what's the age difference between two underage kids for sexting (or other sexual activity) to become a crime?

Prosecuting a 16 year old for sexting a 15 year old probably isn't as serious as a 16 year old sexting a 12 year old?

Most states allow a 2 or 3 year age gap. So an 17 year old and a 15 year old might be okay, but usually parental consent is required.

Well the problem, as highlighted in the article, is that there is no differentiation on sending images based on the age of the recpient. The irony being that in many of these cases that having sex isn't the crime but "sexting", when it contains graphic images is. Its a logical disconnect that none the less exists to the detriment of the children it is supposed to protect...

You can thank our Puritanical attitude towards anything sexual for that.

[TheFeniX]

Also in 2009, an Indiana prosecutor defended the felony charges he brought against a 14-year-old accused of “sexting,” explaining, “We’re doing these kids a favor by bringing charges, because it will encourage them to be more discreet.” (Jacob Sullum posted on yet another series of cases from 2009 here.)

"To make an omlet, you have to break a few eggs." I have to admit, I understand this logic:* a few (I wish only a few) kids have to have their lives destroyed so that other kids can learn to not act like kids. It sort of makes sense if you're a twisted fuck, don't like kids, and/or don't remember the amount of shit you could get away with when you were a kid.

*Just because I understand the faulty logic doesn't mean I agree with it or would care if the Indiana prosecutor got hit by a truck.

[Elheru Aran]

And what's the age difference between two underage kids for sexting (or other sexual activity) to become a crime?

Prosecuting a 16 year old for sexting a 15 year old probably isn't as serious as a 16 year old sexting a 12 year old?

Most states allow a 2 or 3 year age gap. So an 17 year old and a 15 year old might be okay, but usually parental consent is required.

Because two teens are going to ask their parents if it's OK for them to boink and/or send naughty pictures to each other. (Not disagreeing with your post, just pointing out the inherent ridiculousness of requiring parental consent)

[bilateralrope]

Also in 2009, an Indiana prosecutor defended the felony charges he brought against a 14-year-old accused of “sexting,” explaining, “We’re doing these kids a favor by bringing charges, because it will encourage them to be more discreet.” (Jacob Sullum posted on yet another series of cases from 2009 here.)

"To make an omlet, you have to break a few eggs." I have to admit, I understand this logic:* a few (I wish only a few) kids have to have their lives destroyed so that other kids can learn to not act like kids. It sort of makes sense if you're a twisted fuck, don't like kids, and/or don't remember the amount of shit you could get away with when you were a kid.

*Just because I understand the faulty logic doesn't mean I agree with it or would care if the Indiana prosecutor got hit by a truck.

There is a big problem with that logic. Deterrent can only work if the people you're trying to deter know about the deterrent before they do whatever you're trying to stop them doing. If they don't know about the punishment, they won't be scared of it enough to alter their behaviour. But there is no public awareness effort. Just the media ignoring it unless it's bad enough to cause outrage.

[Elheru Aran]

And to some degree we don't WANT the kids (necessarily) to be more discreet. If they can figure out how to hide something totally from the authority figures in their lives, they can hide other things. But that's more my parent side speaking than anything else. The problem is the 'breaking eggs', not what the kids are doing. If you teach them not to be dumb in the first place, that helps more. Don't tell them 'don't sext', well, maybe DO tell them that, but also tell them 'don't sext to people you don't know/trust' and 'if you sext you may be setting yourself up for x, y, z consequences so think twice'.

It's like banning all forms of sex education but abstinence-only... what theyr'e doing is not going to help and it may make matters worse.

[AniThyng]

And to some degree we don't WANT the kids (necessarily) to be more discreet. If they can figure out how to hide something totally from the authority figures in their lives, they can hide other things. But that's more my parent side speaking than anything else. The problem is the 'breaking eggs', not what the kids are doing. If you teach them not to be dumb in the first place, that helps more. Don't tell them 'don't sext', well, maybe DO tell them that, but also tell them 'don't sext to people you don't know/trust' and 'if you sext you may be setting yourself up for x, y, z consequences so think twice'.

It's like banning all forms of sex education but abstinence-only... what theyr'e doing is not going to help and it may make matters worse.

Teenagers don't think much about long term consequences, and "someone you trust" may as well be anyone, how can you objectively rate that?

[White Haven]

At which point, they fuck up. Gosh. Kids fucking up and suffering for it; that never happens under any other circumstances.

More to the point, they fuck up, they suffer for it, and it stops there. When a kid falls out a tree and breaks his arm and goes to the hospital for it...that's where it stops. Action, consequence, move on.

[SCRawl]

Here's the thing. This sexting thing between teenagers is a real problem. Don't believe me? The practice, when combined with bullying, is responsible in part for several deaths (via suicide) in my part of the world. A disincentive system must be established, and parents need to be educated about the importance of this issue, and how to inoculate their children so that they are less likely to engage in this behaviour. I say this as a father of pre-teen girls. I have been very proactive about the possibility of them bullying or being bullied, and about placing themselves in vulnerable situations via compromising media.

Having said this, making otherwise innocent teens sex offenders for life is definitely not the solution. As has been pointed out, a deterrent only functions if one is aware of the the policy meant to deter. And even if perfect awareness of the consequences could be achieved, going full hard-ass on these teens is still not the right way to go, since teens are well known for (on average) making poor decisions.

[White Haven]

Sexting isn't responsible for shit. Bullying is responsible for quite a lot, on the other hand. One isn't (much of) a problem without the other, but the inverse isn't true.

[SCRawl]

Sexting isn't responsible for shit. Bullying is responsible for quite a lot, on the other hand. One isn't (much of) a problem without the other, but the inverse isn't true.

It is true that the sexting in isolation isn't a big deal. But it won't just be in isolation, and if the content gets into the wild it will become an avenue for bullying that can be impossible to escape.

[White Haven]

And the point is that sexting isn't going to STOP. You have teenagers dripping in hormones and a communications channel that looks privatesque; it's going to get used for that purpose, and unless you want to ban teenage cell phone use there's fuck-all you can do about it. This is especially true from a criminal justice perspective, given that all that's getting done is criminalizing an activity being performed by the victims of the actual problem, bullying. You could try criminalizing the misuse of the products of sexting, but that requires actually catching and dealing with bullies, which school systems have been failing at so spectacularly for so long that I hold little faith of THAT accomplishing much of anything.

[Solauren]

The only thing that would really work would be banning the use of cellphones by children under 18, and regulate them in that regard like cigarettes.

BUT, that's highly unrealistic and unlikely to happen.

[Terralthra]

The only thing that would really work would be banning the use of cellphones by children under 18, and regulate them in that regard like cigarettes.

BUT, that's highly unrealistic and unlikely to happen.

Regulating cigarettes like that didn't keep minors away from them. Why would it work for cell phones?

[Alyeska]

Part of the problem is these laws are statutory. Intent is not a requirement to be guilty. But without Mens Rea, you are no longer punishing people for guilty acts. Statutory fines for things like speeding are fine. But using Statutory laws for felony convictions is absurd. A felony conviction should by its very nature require Intent. If there was absolutely no intent, how can it be a felony in the first place?

The law will continue to be used as a bludgeon by police and prosecutors and ruin countless more lives until meaningful reform is implemented.

The fact that its legal for two 16 year olds to have sex, but it is illegal for them to use any form of technology to record their act should be telling about the problems we face right now. The law hasn't caught up to the technology yet.

[Alyeska]

The only thing that would really work would be banning the use of cellphones by children under 18, and regulate them in that regard like cigarettes.

BUT, that's highly unrealistic and unlikely to happen.

Free Speech violation. Wholesale banning of a form of communication tool to minors would be slapped down by the courts very quickly.

[Coop D'etat]

Part of the problem is these laws are statutory. Intent is not a requirement to be guilty. But without Mens Rea, you are no longer punishing people for guilty acts. Statutory fines for things like speeding are fine. But using Statutory laws for felony convictions is absurd. A felony conviction should by its very nature require Intent. If there was absolutely no intent, how can it be a felony in the first place?

The law will continue to be used as a bludgeon by police and prosecutors and ruin countless more lives until meaningful reform is implemented.

The fact that its legal for two 16 year olds to have sex, but it is illegal for them to use any form of technology to record their act should be telling about the problems we face right now. The law hasn't caught up to the technology yet.

You're confusing your legal terms here. There is a mens rea for an anti-sexting law. Mens rea in this case means that they intended to commit the prohibited act, which would be the case. i.e. they intentionally shared materials of a sexual nature depiciting a minor. This is in contrast to something like statutory rape where the lack of intention to commit the prohibited act (i.e. by ignorance of the age of the other party) is not considered and guilt is considered a matter of strict liability (I think that American Criminal law is allowed to have strict liablity offenses is outrageous, but that's a separate matter).


The issue isn't a lack of mens rea, but that said criminal statute is overbroad as it prohibits acts that most people wouldn't consider to be worthy of criminal punishment. Its a case of the intention to ban one thing ending up banning a host of other things as well.

[Jub]

Being harsh on sexting only continues to allow these pictures to do damage in the first place. If sexuality and nudity weren't such a big deal in the first place the harm done by some naked pictures being leaked wouldn't be nearly so harmful. If he had public baths where the young and old alike bathed nude we'd also have fewer body issues because you'd actually see naked bodies outside of porn and your partner on a normal basis. If anything the way to fix the issue of harm caused by sexting is to make it nudity normal.

[Joun_Lord]

The only thing that would really work would be banning the use of cellphones by children under 18, and regulate them in that regard like cigarettes.

That is just treating a symptom of the problem. Sure they can no longer sext but sexting really isn't the problem, underage sexuality or America's puritan views of sex are. Banning cell phones will only stop, and not even stop considering the sheer proliferation of cell phones and mobile alternatives like internet calls or just the tried and true take a pic with a digital camera and email it, one small problem of a larger problem and create further problems by criminalizing large numbers of children who don't abuse their infernal squawk devices and those that might give them one for such evil purposes as calling the cops or staying in touch with family and friends.