It does not require a particularly astute or wise observer to recognize that our society is built on compromises and concessions. Our nation operates under the belief that its constitution though crafted by men of affluence is as impartial towards the most revered as it is to the most depressed and disenfranchised. Yet, throughout our judicial history we are often reminded that the law cannot predict the future and ostensibly lags behind and inhibits it. 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 Appeal 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 mobile devices and cellular phones in particular, predates its recent notoriety. In 2004 a 15-year-old Pittsburgh, Pa., girl was charged with sexual abuse of children and dissemination of child pornography when she posted nude pictures of herself online. 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.” 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, for many, using child pornography laws to prosecute those whom the very laws are purported to protect is an inexplicable contradiction.

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, what is the role of government and regulation 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.

There is also the counter argument that the law works to promote the very activity that it seeks 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. The law is intended to protect victims and the preyed upon not to punish them. A child uploading their image onto the internet is potentially damaging themselves, but the vast majority has 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.

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 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 years have never undergone any courses on internet safety precautions.

Given this information vacuum, perhaps the government has a greater justification in regulating the usage of cell phones and the information that can be sent through them. Many in the public are genuinely unaware of the dangers of the internet and the affect that it may have on their lives. Though he who gives us freedom for safety may deserve neither, such a notion becomes a harder to justify when one is not dealing in absolutes. The true question regarding the government’s desire to outlaw sexting is to what degree is society willing to limit teenage freedom to ensure teenage safety. In this case, the relative deprivation of freedom may be miniscule in comparison to the harm. In cases such as these, where it is nearly impossible to limit the technology involved in the exchanges, the government chooses to punish the distributors instead. Maybe the regulations are wrong, but some sort of control mechanism appears necessary.

-- ZackSharpe - 25 Oct 2012