Sexting Students Strike Back
Whether it’s just a fad or something more, the sexting issue continues to make headline news. Here’s an interesting twist to the teen craze from where else but Pennsylvania.
Today, child porn advocates from the ACLU of PA will ask a federal judge in Scranton to issue an injunction to protect three teenage girls from the threat of criminal charges for using their cell phones to take and send semi-nude images of themselves.
The suit accuses the Wyoming County DA of violating the three girls’ First Amendment rights and seeks a court declaration that the images “are not child pornography or any other crime.”
The DA said he considered the photos “provocative” and threatened that unless the girls attended a 10-hour class dealing with pornography and sexual violence which he created, he would file criminal charges against them including sexual abuse of a minor and possession or dissemination of child pornography. If convicted, the girls could serve time in prison and would probably have to register as sex offenders.
Seventeen other students caught up in the sexting sting—13 girls and 4 boys—accepted this deal. All of them were either caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.
According to the lawsuit, one of the images shows the plaintiffs from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign.
The other image shows another plaintiff standing upright with a white towel wrapped tightly around her body just below her breasts.
When the girls’ lawyers asked to see the images, the DA refused contending that “they are ‘child pornography’ and that he would be committing a crime by sharing a copy.”
The images came to light in October 2008 when school district officials confiscated several students’ cell phones and discovered images of scantily clad, semi-nude and nude teenage girls, many of whom were enrolled in the district. The school then turned the photos over to the DA.
Sexting is not a sign of deviance or a future indicator that teens will become sex offenders, said Christopher J. Ferguson, a psychology professor at Texas A&M International University who studies how media and technology affect youth.
Mr. Ferguson called sexting a “normative, not wise, sexual behavior on the part of these kids. We would have done it, too, if we would have had the cool phones. We didn’t do it because we didn’t have the technology.”
This is actually an interesting lawsuit and could significantly effect the law concerning visual representations of underage nudity. Child pornography is not protected by the First Amendment, which is the basis for this lawsuit. Child pornography jurisprudence has not contemplated “self-created” child pornography. Privacy interests as well as child exploitation are the cornerstone of our current federal child pornography laws. Sexting places these principles in a whole new context.
Most important, however, is that in order for a visual depiction to be considered child pornography it must contain a “lascivious exhibition of genitals.” Courts have interpreted “lascivious” as follows:
- whether the focal point of the pictures is on the child’s genitals or pubic area
- whether the setting is sexually suggestive. For example, in a place
or pose generally associated with a sexual activity
- whether the child is depicted in an unnatural pose, considering the age of the child
- whether the child was clothed or nude
- whether the pictures suggest sexual coyness or willingness to engage
in sexual activity
- whether the pictures are intended or designed to elicit sexual response
from the viewer
- whether the picture portrays the child as a sexual object
- the captions on the pictures
Nudity is not a pre-requisite for finding that an image is child pornography. Even if the images of these sexting girls are not child pornography, they may still violate criminal obscenity laws. Note that these are federal and not Pennsylvania or other state standards.
Juries, and the public, have the experience and ability to make this determination. No expert testimony is required. So what do you think? Have these girls violated federal child pornography laws? If not, are these images obscene? Or do the girls have a First Amendment right to sext? What if they were pre-pubescent girls and not teenagers (trust me folks that’s next)? A federal judge wants to know . . .
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