Kids Producing and Distributing their own Child Porn

Children producing and distributing their own child pornography has long been a dream of child porn devotees and a nightmare for parents and law enforcement. Not surprisingly, digital technology combined with ease of distribution through social networks and e-mail has made this theoretical threat to children a sad reality.

This disturbing trend, most recently profiled at Wired, raises some thorny legal issues. As anyone who has followed this blog knows, I am no fan of child pornography or child exploitation, even calling for the execution of those found guilty of child rape.

Homemade child porn which is directed, created, and distributed by the usually willing teenage participants (who may be engaging in sexual activity which is completely legal in their state depending on the age of consent) puts us in new and largely uncharted legal territory.

The fundamental underpinning of state and federal child pornography law is to deter, prevent and punish the production, distribution and possession of what are essentially child rape scenes depicting the adult abuse and exploitation of largely pre-pubescent children. The public policy goal is to stop the abuse by stopping the seemingly unlimited demand for such images and movies. This is why child pornography is completely removed from the Constitutional milieu in terms of the First Amendment and obscenity. Simply put, child pornography is “outside” the traditional Constitutional framework and is per se illegal.

This is also why the Supreme Court struck down the ban on virtual child pornography, basically finding that virtual child porn continues to enjoy First Amendment protection since no “real” children were harmed. Virtual child porn can still be banned if it is obscene, but it can not be banned as “child pornography.”

What then to make of pornography involving real teenage children who are consenting to and perhaps even reveling in sexual activity with their similarly situated peers? Should the federal child pornography law track state age of consent laws which still vary widely (from 14 in Hawaii, to 15 in South Carolina, and 16, 17 and 18 everywhere else)? Should there be separate child pornography penalties for juvenile offenders? What about an affirmative defense for such consensual but under-aged conduct?

When child pornography was first banned in the late 1970s, it included children under the age of 16. Congress raised the ban to 18 some years later. Should we return to age 16? or 15? And should commercial sexploitation continue to prohibit actors under age 18 even if homemade teenage movies are exempt?

In U.S. v. Ortiz-Graulau, the First Circuit Court of Appeals was recently confronted with this issue. The case involved a 38 year old man who carried on a consensual sexual relationship with a fourteen year-old girl which was completely legal under Puerto Rican law. The defendant, Ortiz, was convicted under the federal child pornography law for taking pictures of sexual acts between him and the girl. When arrested, Ortiz admitted that he had a sexual relationship with the girl and that he took the explicit photographs with the knowledge that she was fourteen at the time. But Ortiz insisted that the photographs were not properly considered child pornography because he and the girl were living together legally in a “marital-like” relationship.

The Court made several interesting observations:

Ortiz’s first point implies that the conduct was occurring anyway and just happened to be photographed. But the number of photographs, many of sexually explicit poses, permits a strong inference that some of the conduct occurred in order to make the photographs.

As for Ortiz’ intended use of the photographs, the statute’s language requires only that a visual depiction be made. Perhaps Congress mainly sought to suppress trafficking in child pornography; but a pecuniary purpose requirement was earlier deleted
from the statute and preventing exploitation of children could be aided by the statute’s broad ban on taking such photographs even for private use.

Ortiz probably did not understand that his conduct was criminal: the government points to no proof that Ortiz knew the law, and his lack of concealment and the then-applicable age of consent in Puerto Rico support his factual claim. But neither the statute nor precedent suggests that this is a rare instance in which ignorance of the law is a defense, although this might well be relevant in sentencing.

Ultimately the Court addressed the real difficult issue in this case:

Despite the language of the statute, Congress may well not have intended to make it criminal for a husband and wife to take intimate photographs of each other for their private use; this is so even if the instigator were twenty-one and the other spouse
seventeen, thus falling within the plain terms of the statute’s prohibition. If the government brought such a case, judges might seek to devise limits even on “plain” language; indeed, some judges have even suggested constitutional objections based on
marital or consenting-adult privacy rights. But Ortiz and SMN were not married . . .
[and neither was she or most teenagers a so-called legally consenting adult]

The Court concludes with this warning:

With the requirement of a pecuniary purpose deleted, [the federal child pornography statute] has a potential for producing some outcomes-especially sentences-that are disquieting. This may or may not be true in the present case: the photographs, as SMN’s mother made clear, are not a full measure of the harm done to
SMN’s life by Ortiz’ drawing her into the relationship. But it is quite a different question whether this statute is the proper way to deal with family-related delinquencies ordinarily governed by local law.

Regardless of what you think about Ortiz and his conduct, the fact remains that more and more teenagers are violating laws designed to protect them. Ortiz wasn’t even distributing the photographs which is how many teens get caught. Production alone carries a mandatory minimum of 15 years. Distribution and possession both have a 5 year mandatory minimum. Add to that lifetime registration as a sex offender and kids are facing serious consequences.

How should the law, and society, respond?

3 Replies to "Kids Producing and Distributing their own Child Porn"

  • James R. Marsh
    February 11, 2009 (11:03 am)

    Check out these updates on this story:

    Teenagers’ habit of distributing nude self-portraits electronically – often called “sexting” if it’s done by cell phone – has parents and school administrators worried. Some prosecutors have begun charging teens who send and receive such images with child pornography and other serious felonies. But is that the best way to handle it?

    “Hopefully we’ll get the message out to these kids,” says Michael McAlexander, a prosecutor in Allen County, Ind., which includes Fort Wayne. A teenage boy there is facing felony obscenity charges for allegedly sending a photo of his private parts to several female classmates. Another boy was recently charged with child pornography in a similar case.

    In some cases, the photos are sent to harass other teens or to get attention. Other times, they’re viewed as a high-tech way to flirt. Either way, law enforcement officials want it to stop, even if it means threatening to add “sex offender” to a juvenile’s confidential record.

    “We don’t want to throw these kids in jail,” McAlexander says. “But we want them to think.”

    This month in Greensburg, Pa., three high school girls who sent seminude photos and four male students who received them were all hit with child pornography charges. And in Newark, Ohio, a 15-year-old high school girl faced similar charges for sending her own racy cell phone photos to classmates. She eventually agreed to a curfew, no cell phone and no unsupervised Internet usage over the next few months. If she complies, the charges will be dropped.

    From AM1100 KFAX

    Also check out this post by blogger O Solo Mama:

    So what do you think? Should these kids be charged with making and distributing kiddie porn? What if they get more entrepreneurial and make a homemade movie and sell it? It’s not so far-fetched. According to the ArsTechnica article cited above, 20 percent of all teens have sent nude photos of themselves to another person, and not just to friends.

    Every parent has to talk to their kids about this issue and what the law says even if the law has yet to catch up with technology. Child pornography laws are about protecting children from adults who victimize them. They cannot be applied to minors who unwittingly produce pornography by being minors. Where is the intent to exploit? This is a huge mistake these kids are making but it’s an even bigger one to label them sex offenders. Yet in a recent Florida case a judge argued that these penalties are necessary to protect minors from their own lack of judgment. If you sort that logic out, let me know.

  • James R. Marsh
    February 12, 2009 (10:42 am)

    Even MORE on this issue. What should become of these sapheads?

    Six middle school students could face child pornography charges after snapping a photo of a nude female classmate and distributing it through their cell phones, a practice known as “sexting,” according to police.

    The group of six boys, ages 12 to 14, were not arrested, police said, but will be summonsed to Falmouth District Court. The charges vary depending on the individual but include possessing or exhibiting a photograph of a child in a sexual act, distributing material of a child in a sexual act, and possession of child pornography — all felony charges.

    One of the boys allegedly took the photo of his 13-year-old girlfriend with his cell phone, then sent it to friends electronically, police said.

    Dr. Sari Locker, a sex educator and professor of adolescent psychology at Columbia University, said one out of every five teens has either sent or received nude or semi-nude pictures of themselves or others electronically, according to a survey from the National Campaign to Prevent Teen and Unplanned Pregnancy.

    But she frowns upon charging young children with child pornography and said this behavior doesn’t reflect children’s sexual activity but their desire to attract each other and begin dating.

    “Clearly these boys are not sexual predators or pedophiles,” Locker said. “They’re looking at a girl who’s the same age as they are, and they have a healthy curiosity.”

    Even more from the behavioral health experts . . .

    Dr. Shannon Scarry, the medical director for behavioral health services at Cape Cod Healthcare, which oversees Cape Cod and Falmouth hospitals, said she agrees with Hunt that the boys should be punished but not with felony child pornography charges.

    “You don’t want to overreact if your kids are engaging in this,” Scarry said. “These types of (sexual) urges are not perverse. They are all the same age. It’s different than if it was an 18-year-old with pictures of a 12-year-old. That’s a felony that is going to follow them. It was impulsive, not well thought out, immature behavior, and they should be punished, but this is really an opportunity for a moral lesson.”

  • Richard Dey
    October 7, 2014 (11:22 am)

    The world hard-porn industry (commercial sex) is about 1/3 the size of the makeup industry (>$171 billion vs $<$90 billion). Makeup is a lie; homemade porn, constituting the bulk of of what's available through "porn distributors" (who rarely "make" anything except money). The idea that home-made movies are endangering anybody is one of those fictions used by those who want to get control of what they think is a big business. They'd do better putting mud, pigments, and perfumes together in jars and selling it to the soft-porn makeup industry. And Google, our primary search engine, is merely a pimp for both the porn and makeup industries. We should be more interested in nonfiction than fiction. Homemade porn is at least honest; industrial porn and the fashion industries are the real lies in our society. It exposes pornophobes as liars, doesn't it …! Let's get real about porn, and let's expose the prudes who simply want the money, want to tell everybody else how dirty and nasty they are, and want to pretend that they're in any way 'superior'. They're not. They're snobs who have to wear clothes so they won't be laughed at. Pornophobes are essentiallly ugly moneygrubbers.