Andrea Slane is the Executive Director of the Centre for Innovation Law and Policy (CILP) at the University of Toronto, Faculty of Law and is an IP Osgoode Research Affiliate.
The practice of “sexting” – teens sending sexual, nude or semi-nude photos of themselves through text messaging programs on cell phones – is currently garnering a lot of media attention, especially in the United States. This attention tends to follow two threads. Either the media addresses whether it is appropriate to charge the teens making, sending and/or receiving these messages with child pornography offences, given that at least one study has identified sexting as a wide-spread practice among teens, or the focus is on the hardships suffered by the young people whose images are circulated beyond the originally intended recipient.
The thread focusing on harm to subjects of sexual photos typically arises where a jilted ex-boyfriend more or less widely circulates a consensually taken and sent photo after the relationship goes sour. The harm here lies not only in the circulation of the photo per se, but the ridicule, harassment, and other forms of bullying the subject of the photo is subjected to by her peers – harm that is imminently foreseeable (and often intended) by the ex-boyfriend who got the ball rolling. On the March 6th edition of the Today Show, the tragic story of one such victim, Jesse Logan, is recounted by her grieving mother: after months of taunting and abuse by her peers which was sparked by the widespread circulation of a nude photo by her ex-boyfriend, 18 year old Jesse committed suicide. Jesse’s mother is on the show to inspire two actions: discourage other teens from sending sexual photos in the first place, and encourage schools and police forces to intervene and remedy the situation, before it escalates to the point of hopelessness.
In what appears to be a follow up episode on March 10th, the Today Show aired another segment on the perils of sexting, this time focusing on the consequences for those who make or send the photographs, and asking whether slapping child pornography charges on teens is appropriate. While Jesse Logan’s story is raised again, the lead example is of Florida resident Phillip Alpert, who at age 18 was convicted of transmitting child pornography when he retaliated against his sixteen year old ex-girlfriend by sending her nude photo to over 70 people, including her parents, grandparents and teachers. Given Florida’s draconian sex offender registry system, Alpert is under close supervision and on the sex offender registry. The upshot of the segment is that for one stupid and admittedly mean spirited act, his life has been ruined. Florida “First Amendment and Internet law” attorney Lawrence Walters is the expert on the show, stating that 1) while these acts are wrong, they should not fall under child pornography offences (which he characterizes as being really about adults consuming images of children being sexually abused); and 2) that we are holding teens to a higher standard than adults by punishing activities which adults engage in all the time.
What strikes me about Walters’ reasoning is that it either conflates consensually held photography with non-consensual circulation, or it holds that because we don’t punish adults who engage in the mean spirited non-consensual circulation of sexual photos of their ex-lovers we should not punish adolescents for this behaviour either. The Canadian approach to the harms of child pornography excludes the taking and sharing of sexual photos by minors over the age of consent, as long as such photos are kept privately and for the mutual pleasure of the intimate partners involved in taking the photo (R. v. Sharpe). Thus in Canada, it is only where the photo is circulated outside of the original intimate partnership that the acts of possessing or distributing the photo qualify as child pornography offences. This approach avoids some of the more egregious mismatches highlighted by some U.S. cases, where privately held sexual photos of teens were discovered by teachers or coaches who confiscated cell phones under school cell phone bans, for instance, rather than due to the photos themselves causing disruption in the school.
But Canada and the U.S. share an uncomfortable fit between malicious circulation of once consensual sexual photos among peers and child pornography offences, as well as a lack of accessible remedies for adults who fall victim to similar malicious behaviours. In other words, I would turn Walters’ argument in a different direction, namely that part of the problem of the perceived mismatch of action to punishment among teens is the unavailability of a remedy for this kind of behaviour by adults vis a vis other adults, which is connected to that fact that only child pornography law applies, rather than, say, a criminal variant of invasion of privacy.
There are sound reasons why child pornography offences apply (again, set out in R. v. Sharpe) and why we deem youth under 18 as incapable of consenting to being the subject of sexual photography that is publicly disseminated. But there are also some underdeveloped threads within privacy law regarding the exposure of a person to ridicule via photography which are broached in Aubry v. Editions Vice Versa that could justify an offence of invasion of privacy in cases of malicious publication or circulation of intimate photos – which may be a preferable route over child pornography offences for at least some of the teen-on-teen cases, in that they would not be sexual offences per se and could carry a lesser penalty.
Aubry, being concerned as it is with a civil law breach of the Quebec Charter’s protections of “private life”, struggles with the degree to which the facts in that case lend themselves to a finding that the subject of the photograph (a 17 year old girl sitting outside on the steps of a building) suffered harm as a consequence of the non-consensual taking and publication of the photo at issue. Interestingly enough, the final ruling in favour of the plaintiff depends more on the specificity of a teenager’s social circle than some more universal standard of harm, where it is precisely a “teenager’s sensitivity to teasing by her friends” that is foreseeable by the photographer taking and publishing her picture without her consent. Where the circulation of sexual photographs is concerned, the elevation of the civil standard of foreseeability to the criminal standard of mens rea is not far fetched – particularly where photographs of teens are concerned, and where indeed the point of the circulation of the photograph is clearly to both humiliate (by sending the photographs to parents, grandparents and teachers) and to incite the bullying behaviours of peers. The availability of such an offence might mean that people who circulate sexual images of teens within the subject’s social world would still be more likely to meet the elements of the offence than a person who circulates a photo of an adult, but the offence would not reinforce the somewhat arbitrary disappearance of protection that currently occurs once a young person turns 18.
An additional benefit of such an offence is that it emphasizes the dignity-based privacy values which underlie the harms caused by these actions, and the offence would not be limited to sexual photos but could include other types of compromising photos (washroom photos, for instance). It is certainly important to note that for the most part the victims of these actions are girls or young women, for whom the maintenance of dignity in the realm of sexuality is still, sadly, hard to come by.
While I think teenagers are more vulnerable to emotional harm when photos of them are distributed within their social circles, the fact that a teenage boy who acted out of most likely momentary anger and frustration will be more likely to be held accountable for his actions than an adult who perhaps planned the distribution seems wrong. The reason why teenagers are often held to lower accountability standards is because they often do not realize the dangerous implications of their actions. The problem is that teenagers engage in adult conduct but are often not held to adult standards. It would be difficult to argue that teenagers in these situations must be held to adult standards in order to match the age of consent, but this seems to be one of the few viable solutions. The disconnect between what we consider to be ‘adult’ and ‘youth’ behaviour seems to be at the root of the problem.
The primary concern I identified with the use of child pronography laws to punish teen sexting is what I call the dilutive effect that such prosecutions have on real child pornography offenses. Judges and prosecutors start to take the entire category of offense less seriously, and the real offenders start to slip through the cracks. If our goal is to protect children, we abandon that goal when we use the strict child porn laws against teens sending racy photos of each other. Child pornography is a significant exception to the First Amendment’s protection of all speech and expression. When we start using laws that were designed to punish very different pedophilic conduct for sexting activity, we do a disservice to the children we claim to protect.
Thanks for posting Lawrence. I don’t find the “dilutive effect” argument to be convincing, so I didn’t address it — after all, there are many criminal offences that apply to acts that vary significantly in severity (assault, theft, vandalism) where the fact that there are less serious incidences of the offence doesn’t dilute the “entire category of offence”. It seems to me that what you want to do is inject some distinction into the law between people who circulate sexual photos of minors for sexual purposes and people who do it to humiliate or otherwise harm the subject of the photo. Child pornography law currently does not recognize such a distinction. My proposal for an alternative offence of invasion of privacy aims to address the latter type of behaviour and distinguish it from the first, so I think in that way we may be on the same page — though I think some sort of prohibition on acts of deliberate humiliation via circulation of sexual photos should also apply to adults (which I assume you don’t).
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