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< | Sexting or the process where individuals send sexually explicit images or text messages to others through mobile devices and cellular phones in particular, predates its recent notoriety. The internet has created an arena where individuals can produce, and consume media that expresses their sexual desires, no matter how deviant. Lawmakers have responded to this activity by creating harsh penalties to punish those who seek to exploit minors through these new channels. But the law has been misapplied. In January of 2007, a sixteen year old girl (A.H.) and her 17 year old boyfriend (J.G.W.) were made tragically aware of the flawed and capricious nature of man’s interpretation of his laws. The First District Court of Appeals | >
> | Note: The previously uncited portions of my paper were interviews I conducted with these individuals in the past when I worked for a criminal defense organization. I have cited to those interviews now accordingly. | | | | |
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In what State? We have dropped into the beginning of an essay in which no thesis has been stated: we're just listening to the details of some state criminal litigation rolling by.
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> | Congress needs to pass a bill that sets out national guidelines for sentencing “sexters” that presumes that minors have no intention to disseminate child pornography and that the penalties for such behavior should granted by school boards instead of courtrooms, outside of the most egregious offenses. States have thus far proven incapable or unwilling to create schemas that take into account the age and intentions of the adolescents implicated as “sext” offenders. It has led to the criminalization of adolescent, private, sexual activity. | | | | |
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< | affirmed the lower court decision that charged each teen with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child. Ironically, the charges were based on digital photos the couple took of themselves engaged in “sexual acts” and then sent to J.G.W.’s email address. As so often happens in “sexting” cases the victim and perpetrator are one in the same. | >
> | Sexting or the process where individuals send sexually explicit images or text messages to others through cellular phones, predates its recent notoriety and in states’ struggle to catch up with the activity, they have created overly broad legislation. Sexting is the result of internet, which has created an arena where individuals can produce, and consume media that expresses their sexual desires, no matter how deviant. Apparently fearful of the ease with which child pornography can be disseminated across the internet, lawmakers have responded to this activity by creating exceedingly harsh penalties aimed at those who seek to exploit minors through web-based channels. In Florida in January of 2007, a sixteen-year-old girl (A.H.) and her 17-year-old boyfriend (J.G.W.) were made tragically aware of these over-inclusive statutes. Each teen was charged with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child—themselves. | | | | |
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> | This is not entirely surprising because as Carolyn Atwell-Davis, the Vice President of Policy and Government Affairs at the National Center for Missing & Exploited Children states, “There are four actors in every sexting case, the photographer, distributor, the recipient and the individual depicted.” (C. Atwell-Davis, personal communication, July 2009). The flaw in most sexting prosecutions is that the alleged offender often constitutes most of these positions, and the primary and substantial damage caused, if any, by the sexting is to the individual being prosecuted. The harm caused is reputational, and though the law recognizes reputational harms such as slander and libel, it does not seek retribution against one who has supplied false information that has sullied his own reputation. It is confusing as to why it would seek redress against one who has sullied their own reputation through the dissemination of suggestive images, who, though a minor, has no intention to profit off such activity as to implicate other forms of criminality. The argument can be made that the State is seeking redress on behalf of citizens for actions that offend public notions of morality, or that it is protecting the children from themselves through a penal deterrent—a potential usage of the states’ parens patrie power. But both of these claims are undermined by the public policy underlying child pornography statutes—to combat the intentional sexual exploitation of children. | | | | |
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< | This isn't capricious interpretation: it's literal interpretation. Such a result is
plainly inconsistent with the rule of lenity in construction of
penal statutes, which is really all that the essay goes on to say.
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> | If the morality behind child pornography laws is that society considers conduct odious which profits from the exploitation of society’s most vulnerable, it will not be achieved by prosecuting sexters. The common theme in most “sexting” cases is that the perpetrator is an adolescent who has exchanged suggestive images of himself or herself with another adolescent with whom they are romantically involved. Such persons are not envisioned by legislative schema designed to deter and prosecute individuals that financially profit, or provide financial incentives to those who profit off pornographic depictions of minors. Nor are these penalties effective if they are an attempt to deter minors from engaging in “sexting” behavior because in most of these cases minors lack notice of the illegality of their actions. Further, such applications of child pornography laws are often in congruent with the state’s established legal schema. | | | | |
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> | As Justice Padovano observes in his dissent to the A.H. decision, the Court has decided in B.B. v. State, that the right to privacy is also extended to children. In B.B., a minor was charged with unlawful sexual intercourse though both individuals were under-aged. He concludes, “If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor.” Padovano’s logic is sound; essentially the court is arguing that it is legal for minors to have sex, but illegal for them to “sext” even if it is not distributed beyond the two participants. If the underlying conduct is legal then it less likely, that recording such activity is illegal or should be treated severely. Padovano’s analysis illustrates the extent to which the local governments have struggled to write legislation that codifies justice in a world where technology has made child exploitation more readily achievable. | | | | |
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< | This is not entirely surprising because as Carolyn Atwell-Davis states, “There are four actors in every sexting case, the photographer, distributor, the recipient and the individual depicted.” | >
> | Given its relative remoteness from local pressure in places such as in Florida and Arizona which have some of the more stringent child pornography laws in the nation, the federal government is in the best position to articulate a clearer vision of how sexting offenses should be considered nationally. The federal governing bodies are less beholden to more conservative constituencies. Sexting is often an interstate activity and the states differ in their degree of leniency in regards to the practice. The difference in potential penalties, for the same offense, if committed in a different state may be so disparate that it will be difficult to justify allowing the interstate diversity to exist. Unlike the benchmark for statutory rape, which also varies across the states, a collective community conscience does not exist to inform individuals about the potential illegality of their sexting actions. Nor is there a threat of adolescents being coerced into these digital exchanges by older parties because most sexters are virtually the same age. So it makes less sense for states to impose a strict liability penalty upon sexters. Congress must act to promote a schema of leniency because the states have shown that they will not. Instead, states are now punishing the same adolescents they have repeatedly failed to educate about the dangers of their internet and sexual behavior. | | | | |
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< | States where? If it
matters that this person said this obvious thing, link to the
document in which she says it, or if it is not linkable, give a
citation. Why does it matter that this person said this obvious
thing? Who is she that her saying it conveys more than the obvious?
In most instances individuals involved in sexting occupy multiple roles; thus it is not surprising that in the courtroom they are also regarded from multiple standpoints. Despite this premise, using child pornography laws to prosecute those who the laws are crafted to protect is an inexplicable contradiction.
No. In theory that can
be said of every invocation of every penal law, which purports to
protect us in general by punishing us in particular. But penal
statutes are to be construed leniently, and prosecutorial discretion
is supposed to be used in the interests of justice.
Justice Padovano in his dissent to the A.H. decision references B.B. v. State, a case in which the court said the right to privacy is also extended onto to
children. In B.B., a minor was charged with unlawful sexual intercourse though both individuals were under-aged. He concludes, “If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor.” Padovano’s logic is sound; essentially the court is arguing that it is legal for minors to have sex, but illegal for them to sext even if it is not distributed beyond the two participants. But his logic does not tackle the central question underpinning sexting laws, is it proper for the government to enforce sexting laws against adolescents in a world where technology has made child exploitation more readily achievable?
It is difficult to claim that the law should not regulate how sexually suggestive digital images of adolescents are transmitted. One of the greatest arguments for the regulation of technology and the limitation of software is the negative consequences the spread of this technology may bring. Perhaps, regulation of technology and the spread of intellectual property law are justified on the basis that the government needs to know how systems work. If there are very limited channels through which technology may be produced, then it can be more easily tracked and stymied. Few would argue that child pornography or the channels through which it is disseminated are not worthy of government tracking and intervention. But such laws may have adverse effects that defeat their purpose.
What is the sequence of points in this argument?
Such laws may work to promote the very activity that they seek to prevent. NYU Law Professor Adler understands that, “Prohibition makes things sexier and may make [sexting] more alluring,” and ponders to what extent can and will the law continue to criminalize what is potentially mainstream behavior. When an adolescent uploads their images onto the internet it is potentially damaging to the parties depicted in the photographs, but the vast majority have no intention besides self-expression. But law limits many other sorts of arguably mainstream behavior from marijuana usage to dog-fighting in certain regions of the country. It is not uncommon and it is accepted that the law may take on a paternalistic notion that often contradicts the opinions or large segments of society.
Opponents of the current legal regime may argue that an activity that would be legal if the parties were only a few years older should not place them in a position to face criminal penalties. But that would differentiate sexting laws from automobile, alcohol and others laws that differentiate on the basis of one’s age. Though the validity of such age restrictions can be contested, the purported principle behind such laws is not dissimilar from the logic behind sexting penalties. Sexting is often an activity that occurs on a whim, and its impact is instantaneous and lasting for the parties involved. It is not dissimilar from the belief that adolescents have not yet achieved the requisite level of maturity to be able to handle decisions regarding alcohol. But labeling a fifteen year-old as a “sex offender” for sending digital images to her boyfriend is entirely unjust. It is a failure of the proportionality prong of criminal law, if it should even be criminalized.
The entire notion of prosecuting teenagers questions whether adolescence serves as an open-ended intermediary period in which the silhouette of one’s person is sketched out as many believe, or if a person essentially complete. Dr. McQuade? of the Rochester Institute of Technology does not disagree with the notion that juveniles must assume responsibility for their actions, but he recognizes that there are several societal factors one must consider in regards to sexting trends. McQuade? states, “Sexting is an outcome to be expected through the expansion of technology and the fact that kids are prone to indiscretion.” He notes that the various promotions and advertisements mobile phone providers use to target teens; options such as unlimited texting or free incoming calls encourage children to use potentially exploitative features. This combined with an overall lack of a structured, systematic education on the subject has left adolescents in a vulnerable position. Though not seeking to conflate the two, McQuade? observes that we bestow upon teens the ability to drive at 15 and 16 years of age with formal training and an understood seriousness. Yet, he is astounded by the frequency in which 19 and 20 year-olds have never undergone any courses on internet safety precautions.
Dr. McQuade? should not be surprised. As long as we continue exist in a society in which we attempt to legislate and advocate morality through abstinence-only policies, it can be expected that adolescents will fail to be adequately educated about sexual precautions and related activities such as “sexting.” The incomprehensible sexting laws are essentially a derivative of the current regime that is uneasy to converse with adolescents about their sexual activity. This does not mean it is too late to have a discussion with adolescents after “sexting” is discovered. But the conversation should be with parents and school administrators, not prosecutors.
You can't quote without linking or citing.
It's still not clear what the point of the essay is. Prosecution
is a poor way of dealing with what is either a problem or not a
problem, depending on the values of the observer. Maybe it is
important to regulate "communications," and maybe it isn't. Maybe
the issue is to whom the material is distributed, or maybe that's
not the crucial question. And so on.
What the second draft needs is what the first one needed: a
specific argument clearly stated, tightly argued, leading to a
conclusion that the reader could use to advance the thought process
beyond where you leave her.
-- ZackSharpe - 19 Jan 2013
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> | Dr. McQuade? of the Rochester Institute of Technology, who in January of 2008 concluded the largest cybercrime research study, which involved both students and teachers, says that society should not be surprised that sexting exists. He argues that, “As long as we continue exist in a society in which we attempt to legislate and advocate morality through abstinence-only policies, it can be expected that adolescents will fail to be adequately educated about sexual precautions and related activities such as ‘sexting.’” (S. McQuade? , personal communication, July 2009). The incomprehensible sexting laws are essentially a derivative of the current regime that is uneasy to converse with adolescents about their sexual activity. This does not mean it is too late to have a discussion with adolescents after “sexting” is discovered. But the conversation should be with parents and school administrators, not prosecutors. Since the states are reluctant to return these private conversations to households and school auditoriums, Congress must assume the task. |
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