The Iowa Supreme Court has affirmed the conviction of 18-year-old Jorge Canal, who complied with a 14-year-old friend’s request for a photo of his penis. The young man is now forced to register as a sex offender, meaning his chances of getting a college degree, job, or livable apartment are pretty much ended.
According to the court, the girl “generally hung out with teenagers older than herself;” was “only friends” with Canal; thought the picture was sent “only as a joke;” and was not “a means to excite any feelings.” Nevertheless, Canal was convicted of “knowingly disseminating obscene material to a minor.”
Canal was a foolish kid. But there are many ugly, stupid, irresponsible adults in this story. The girl’s mother, who checked her daughter’s e-mail and internet use, found the photo and forwarded it to her husband. The father then showed the photo to his friend, a police officer. The cop arranged to have Canal arrested. A prosecutor pursued the case, a judge tried it, a jury convicted. These adults failed Canal and his friend miserably. His ruined life will be a testament to their fear, insecurity, and hatred.
All these adults were supposedly attempting to protect Iowa’s young people–by punishing this kid who was fooling around with a pal.
So let’s spend a moment in the real world (which none of these adults seem to inhabit). Which is likely to hurt this 14-year-old girl more—seeing a 2-square-inch photo of a friend’s erect penis, or being the reason that this friend will spend time in jail and decades as a registered sex offender? Her life is now ruined (in addition, of course, to his), because of her criminally negligent parents, criminally ambitious prosecutor, and 12 jury members who failed to protect people who needed justice but received only wrath.
Americans should understand the horrors of our obscenity laws: a picture or word or object is obscene only after a jury decides that it is. And a jury can decide that ANY picture, word, or object is obscene. So no one can know for sure what’s obscene until it’s too late. This is exactly like laws against “hooliganism” in places like Russia that we rightly deride.
The judge in Canal’s case had rightly told the jury that “a depiction of a person’s genitals was not in and of itself obscene. In order for the depiction of a person’s genitals to be obscene, an average person applying contemporary community standards with respect to what is suitable material for minors must find the material is patently offensive, appeals to the prurient interest, and lacks serious literary, scientific, political, or artistic value.” At that point, the picture becomes illegal, and sharing it with someone else becomes a crime.
A jury of twelve Americans destroyed Jorge Canal’s life because they believed that a picture of his erect penis is “patently offensive.” I hope each of them never gets a good night’s sleep for the rest of their lives.
Dr. Marty Klein has been a Licensed Marriage & Family Therapist and Certified Sex Therapist for 29 years. As a clinician, he works each week with couples and individuals who have a variety of sexual and non-sexual difficulties--over 30,000 sessions since 1980.
Dr. Klein fights for the sexual rights of all Americans through his legal and courtroom work. He has been an expert witness, consultant, or invited defendant in many state and federal censorship, internet, and obscenity cases.
He has authored over 100 articles in publications such as Parents, New Woman, and Playboy, as well as San Francisco Medicine, the California Therapist, and the Journal of Homosexuality. He is also a former contributing editor to The New Physician, American Baby, and Modern Bride.
An ever harsher approach is doing more harm than good, but it is being copied around the world
iStockphoto
IT IS an oft-told story, but it does not get any less horrific on repetition. Fifteen years ago, a paedophile enticed seven-year-old Megan Kanka into his home in New Jersey by offering to show her a puppy. He then raped her, killed her and dumped her body in a nearby park. The murderer, who had recently moved into the house across the street from his victim, had twice before been convicted of sexually assaulting a child. Yet Megan’s parents had no idea of this. Had they known he was a sex offender, they would have told their daughter to stay away from him.
In their grief, the parents started a petition, demanding that families should be told if a sexual predator moves nearby. Hundreds of thousands signed it. In no time at all, lawmakers in New Jersey granted their wish. And before long, “Megan’s laws” had spread to every American state.
America’s sex-offender laws are the strictest of any rich democracy. Convicted rapists and child-molesters are given long prison sentences. When released, they are put on sex-offender registries. In most states this means that their names, photographs and addresses are published online, so that fearful parents can check whether a child-molester lives nearby. Under the Adam Walsh Act of 2006, another law named after a murdered child, all states will soon be obliged to make their sex-offender registries public. Such rules are extremely popular. Most parents will support any law that promises to keep their children safe. Other countries are following America’s example, either importing Megan’s laws or increasing penalties: after two little girls were murdered by a school caretaker, Britain has imposed multiple conditions on who can visit schools.
Which makes it all the more important to ask whether America’s approach is the right one. In fact its sex-offender laws have grown self-defeatingly harsh (see article). They have been driven by a ratchet effect. Individual American politicians have great latitude to propose new laws. Stricter curbs on paedophiles win votes. And to sound severe, such curbs must be stronger than the laws in place, which in turn were proposed by politicians who wished to appear tough themselves. Few politicians dare to vote against such laws, because if they do, the attack ads practically write themselves.
In all, 674,000 Americans are on sex-offender registries—more than the population of Vermont, North Dakota or Wyoming. The number keeps growing partly because in several states registration is for life and partly because registries are not confined to the sort of murderer who ensnared Megan Kanka. According to Human Rights Watch, at least five states require registration for people who visit prostitutes, 29 require it for consensual sex between young teenagers and 32 require it for indecent exposure. Some prosecutors are now stretching the definition of “distributing child pornography” to include teens who text half-naked photos of themselves to their friends.
How dangerous are the people on the registries? A state review of one sample in Georgia found that two-thirds of them posed little risk. For example, Janet Allison was found guilty of being “party to the crime of child molestation” because she let her 15-year-old daughter have sex with a boyfriend. The young couple later married. But Ms Allison will spend the rest of her life publicly branded as a sex offender.
Several other countries have sex-offender registries, but these are typically held by the police and are hard to view. In America it takes only seconds to find out about a sex offender: some states have a “click to print” icon on their websites so that concerned citizens can put up posters with the offender’s mugshot on trees near his home. Small wonder most sex offenders report being harassed. A few have been murdered. Many are fired because someone at work has Googled them.
Registration is often just the start. Sometimes sex offenders are barred from living near places where children congregate. In Georgia no sex offender may live or work within 1,000 feet (300 metres) of a school, church, park, skating rink or swimming pool. In Miami an exclusion zone of 2,500 feet has helped create a camp of homeless offenders under a bridge.
There are three main arguments for reform. First, it is unfair to impose harsh penalties for small offences. Perhaps a third of American teenagers have sex before they are legally allowed to, and a staggering number have shared revealing photographs with each other. This is unwise, but hardly a reason for the law to ruin their lives. Second, America’s sex laws often punish not only the offender, but also his family. If a man who once slept with his 15-year-old girlfriend is barred for ever from taking his own children to a playground, those children suffer.
Third, harsh laws often do little to protect the innocent. The police complain that having so many petty sex offenders on registries makes it hard to keep track of the truly dangerous ones. Cash that might be spent on treating sex offenders—which sometimes works—is spent on huge indiscriminate registries. Public registers drive serious offenders underground, which makes them harder to track and more likely to reoffend. And registers give parents a false sense of security: most sex offenders are never even reported, let alone convicted.
It would not be hard to redesign America’s sex laws. Instead of lumping all sex offenders together on the same list for life, states should assess each person individually and include only real threats. Instead of posting everything on the internet, names could be held by the police, who would share them only with those, such as a school, who need to know. Laws that bar sex offenders from living in so many places should be repealed, because there is no evidence that they protect anyone: a predator can always travel. The money that a repeal saves could help pay for monitoring compulsive molesters more intrusively—through ankle bracelets and the like.
In America it may take years to unpick this. However practical and just the case for reform, it must overcome political cowardice, the tabloid media and parents’ understandable fears. Other countries, though, have no excuse for committing the same error. Sensible sex laws are better than vengeful ones.
Can you just imagine? You're an older lady and you and your boy friend take frisky photos of each other. But this law says you are not capable of being in your right mind, so your friend is now going to go to jail and he's a sex offender? These law makers need to get a clue! Stop criminalizing human behavior. And btw being 60 doesn't make you feeble minded. My grand dad died at 96 and he was more clear headed and with it then most 50 year olds.
I’ve been peeved all month about the latest panic: “sexting.” More and more states are bringing child-porn charges against teenagers who take racy pictures of themselves and send them electronically to lovers or pals. Child pornography is a far more serious crime — in terms of penalties, anyway — than is having actual sex. Sentences run to years per image, and after prison the person must register as a sex offender, a kind of life sentence in itself.
You might call sexting a dunderheaded act — who knows where your immortalized nipples might end up — but also a victimless “crime.” Yet here is the amazing part: Child-porn law is based on the minor’s inability to consent to being photographed; the model is ipso facto a victim of the photographer. Sexting, in which the model is also the photographer, is a crime in which a person can be both perpetrator and victim at the same time.
U.S. sex law is like a black hole: Once reason falls in, it can never re-emerge.
Can all this get any stupider? Just as I was asking myself this question, a post arrived from sex therapist Marty Klein’s blog, Sexual Intelligence, confirming that it could:
Massachusetts state representative Kathi-Anne Reinstein (D-Revere) has introduced a bill making it a crime for anyone over 60 to pose nude or sexually for a film or photo. The person taking the photo — whether a lover, artist or commercial porn maker — would also face jail time.
Adding insult to injury, the proposal amends a bill designed to punish those who make child pornography. It treats fully functional adults who happen to be over 60 the same as children under 18; it explicitly takes away their right to consent to be photographed in a lascivious way.
What Klein doesn’t mention is that the bill precludes consent not only by “an elder” but also by “a person with a disability.” Massachusetts law defines an elder as someone over 60; a “disability” is “a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection.” The bill is an obvious violation of the First Amendment, says Florida Constitutional lawyer Marc Randazzo, who notes that among the consent-stripped could be his own mother, whom he describes as a 60-plus sexually active “knockout” with a lung condition. Representative Reinstein, by the way, is 38.
We can hope this idea languishes in committee — and, if not, is ridiculed to death. Yet, once impassioned, Reinstein does not rest. Her 2006 proposal to honor the Fluffernutter as the state sandwich failed; it is back on this session’s calendar. Now that senior advocacy groups have informed her “elder exploitation and pornography is on the rise,” she told the Boston Herald, the necessity of her new bill is a “no-brainer.” This is an indisputable fact.
It is axiomatic that anything you want to outlaw is widespread, on the rise or both. Once reported, the proliferation of said pernicious activity will be re-reported until it becomes “fact,” with or without substantiation. Like elder porn, sexting is alleged to be widespread and increasing. Among many others, CBS News recently told its audience that “roughly 20 percent of teens admit to participating in ‘sexting,’ according to a nationwide survey by the National Campaign to Support Teen and Unplanned Pregnancy.” It called sexting “shockingly common.”
Is 20 percent shocking or common? Is the number even accurate? Journalist Debbie Nathan did what every reporter should: She checked the source. Turns out the datum was derived from a grand total of 653 survey respondents ages 13 to 19. These kids were among a randomly selected subgroup of a self-selected pool of 375,000 teens and young adults who have told a polling outfit called TRU that they’re willing to answer online surveys. Of the young people TRU sent questions regarding their electronic sex lives, 90 percent chose not to respond. But 653 teens were moved to disclose, and about one-fifth said they sent sexy self-portraits to lovers and friends.
Bill Albert, the Campaign’s chief program officer, defends the survey’s credibility but stresses that it “represents just one point in time. For all we know, the practice could be decreasing.” Yet sexting prosecutions are proliferating as fast as sexting is rumored to be. And by the time Reinstein’s bill reappears, granny porn will also be recognized as a serious public safety threat, warranting strong laws to combat it. Mark my word.
It is easy to make fun of the Keystone Komstocks who write and enforce vice laws. Yet this recent pair of virtue-rescue missions deserves serious attention because the same misguided principle lurks behind both efforts.
That is, anyone who displays her body in a sexual way cannot possibly be doing so on her own volition. Somebody somewhere must be coercing her to remove her clothes, dance around the pole or aim the camera and press “send.” That the disrober-aimer-sender is usually female only compounds the suspicion that she is not in possession of her own mind and body.
Nearly three decades ago, pro-sex feminists defeated two municipal ordinances enshrining the idea that pornography is violence against women. Adults generally have refused to be protected from self-exhibition for fun or profit. Voyeurism is also a popular entertainment: Commercial pornography, one of the enduring legacies of the sexual-liberation movement, is flourishing. Sexting, you might say, is a 21st-century offspring of both these phenomena. For better or worse, pornographic tropes, including the defining elements of exhibitionism and voyeurism, are part of the lingua franca of teen sexual self-expression. And the digital revolution has turned every girl, boy, woman, man or transperson into a potential pornographer.
These truths are evidently disturbing to America’s upholders of decency. Turning their attentions from adults to children, they’ve vastly expanded the universe of minors in need of supervision. Everywhere, the sexual age of consent has risen from 13 or 14 to 16 or 18. Clipped at the bottom, the age of sexual majority might now be shorn at the top — at 60 — and around the edges, where bodies and minds have differing abilities.
Older and disabled people have long been infantilized, and sexual neutering is part of it. They (or should I say we; I’m 56) are considered cute, weak and dim — also attributes of innocence, which is to say ignorance and incompetence. This condescension shows itself in various forms of discrimination, which has led to the designation of the disabled and people over 40 as “protected classes” — legal categories of people, such as racial or religious minorities, who may suffer discrimination based solely on who they are.
But legal protection often is distorted into legal protectionism. As in anti-sexting and elder-porn laws, that usually means protecting people from themselves.
“Never in my wildest dreams did I imagine a 16-year-old taking a semi-nude picture of herself and sending it to her 17-year-old boyfriend would be prosecuted under child-pornography laws,” Bill Albert told me. Neither, apparently, did Vermont’s legislators. They are now scrambling to carve out an exception to state child-porn laws that decriminalizes the consensual exchange of graphic images between people 13 to 18 years old.
Although skeptics are already worrying that “predators” will get in on the sexting game, I predict the amendment will pass. Vermont has been more lenient to juveniles than have other states. But at the same time, we can expect to see more sexual behaviors criminalized — and more classes of people protected from what might be their own desires. This year, in clauses regarding sex-crimes victims, the phrase “or a person with a mental illness or disability” has been inserted after “a child 13 years of age or under.” That could be a good thing, guarding people who really need it, and Vermont’s legal definition of mental disability is far narrower than Massachusetts’. But who will define the consent of the disabled? And what will we be shielded from next? Baby-boomer porn?
And then, what will the next legal do-over look like, as the state attempts to scrub its politically motivated, unnecessary and harmful sex-crimes laws of their unintended consequences?
This afternoon I received a follow up e-mail from Peter Cumming regarding what's been happening since he gave his speech on Sexting. I have now put the following note and a link to my conference paper at the top of the RESEARCH AND PUBLICATIONS page of my York University - Faculty of Arts - Peter Cumming - Faculty Website page. Here is the link that I would encourage you to share with people interested in accessing the whole of my conference presentation: http://www.arts.yorku.ca/huma/cummingp/research.html .
Conference Paper About Teen "Sexting" (May 26, 2009)
On May 26, 2009, as part of a panel on Youth, Sexuality, and Technology, a joint session by the Association for Research in Cultures of Young People (ARCYP) and the Association of Canadian College and University Teachers of English (ACCUTE), at the 78th Congress of the Humanities and Social Sciences at Carleton University in Ottawa, I delivered a paper, "Children's Rights, Children’s Voices, Children’s Technology, Children’s Sexuality." The paper has received considerable legitimate media attention, but it has also "gone viral" around the Internet and so around the world. Unfortunately, in doing so, many of my ideas have been taken out of context and misrepresented.
A conference paper, in my opinion, is a "test drive" of ideas, an opportunity to encourage public discussion, debate, and even disagreement. It is in that spirit I presented this paper. While I have met many wonderful, caring, thoughtful people from various walks of life--lawyers and workers in children's justice and rights, law enforcement officers, social networking workers, activists working on behalf of children--through the rapid spreading of my arguments through various media (newspapers, radio, and television) and the Internet, selective readings of parts of my conference paper have led to violent and abusive reactions from some quarters. This has ranged from a questioning of my motivations to ridiculing of the name my parents gave me to personal attacks. Rather than engage in civil discourse, some parties have chosen to make public and private ad hominem attacks.
For people interested in vital issues related to youth, sexuality, and technology, I am making available here the complete conference paper as presented in Ottawa--so that people can respond based on more complete knowledge than is available in press releases, interviews, and wire copy. Although I prefaced my presentation by indicating that "children's voices" were not in the presentation as I had originally planned and hoped, the written copy of the paper below is a full and accurate reflection of the presentation I made.
All I would ask of anyone downloading this paper is that they leave it complete, including my name, and that they link to the article here if wanting to refer the article to others. (I would like, for example, to post a complete bibliography with the paper as soon as possible.) Download "Children's Rights, Children's Technology, Children's Sexuality."
I came across several articles on a speech given on Sexting by Peter Cummings to a conference in Canada. click here to read an interview he gave. Of course much was being made about what he said and many where overreacting. So I decided to send him an e-mail asking if I could read it and see what was said in context. He responded right away and send me the text version of his speech. This is what he had to say about the speech and what he'd like as conditions of reusing his information. Please respect his wishes.....
Please feel free to share my paper for non-commercial uses with individuals provided you leave the paper complete with my name on it and the context in which the paper was presented. (I may post it on my own Website so that more people can access the full argument directly rather than merely seeing threads of it on the Internet.
As I mentioned, it is a conference paper--an opportunity to test out ideas and encourage discussion and even agreement; it is not a referreed article in which every last fact has been checked and double-checked. Unfortunately, I haven't yet had the chance to develop a full bibliography for the paper from my research notes; however, there are markers in the paper itself for sources of information quoted or borrowed. In fact, my paper was largely about how decisions are being made about "sexting" without reliable research and knowledge. Rather than everyone repeating "20% of Teens are Sexting" from a single, online survey that included 18- and 19-year-olds as "teenagers" (I know that literally they are teens, but under laws, including child pornography laws, they are adults!) and used as its definition of "sexting" the sending of "nude or semi-nude photos via cellphone", we should simply say, "We don't know how many teens are sexting. We don't know exactly of what that sexting consists. We don't know how many private exchanges become public. We don't know what sexting means to teens themselves." Moreover, our obsession with a purported epidemic of teen sexting obscures the fact that "young adults" (20-26) are doing this far more frequently than teens, and we don't have any knowledge whatsoever of what "adult adults" are doing vis-a-vis sexting.
Best, Peter Cumming It was nice to hear someone of his stature speak out with a voice of reason. It is so hard to have rational discussions when it comes to these issues especially when it comes to teens and sex.
His speech in full follows.....
Roundtable on Youth, Sexuality, Technology
Joint Session of Association for Research in Cultures of Young People (ARCYP)
and Association of CanadianCollege and University Teachers of English (ACCUTE)
The title of today’s panel, “Youth, Sexuality, Technology,” sounds like a recipe for moral panic.And it is moral panic about a recent phenomenon, a purported epidemic of young people’s “sexting,” I wish to respond to briefly today.In particular, I want to contextualize teen sexting and adult responses to it by highlighting significant gaps in children’s rights discourse, particularly the United Nations Convention on the Rights of the Child, in relation to children’s provision rights to healthy sexual exploration and expression and children’s participation rights as determinants of their own sexual being and behavior.Finally, I visit these issues as an embodied human being with his own distant history of childhood and sexuality—even if this occurred considerably before the invention of “digital technology”—though I fear that those of you came to this paper because of the abbreviated abstract’s promise that the author would contrast his own “childhood experiences exploring sexuality in 1950s rural Ontario with those of tweens in 2008” will be sadly disappointed at the few and tame revelations to come (while those of you who didn’t read the abstract and stumbled here because you thought this was a Geography panel may be equally relieved to hear this reassurance).
First, who are these “children,” including teenagers, adolescents, young people, young adults, about whom I am speaking, and why do I insist on calling them “children” in a panel on “youth”?The Convention on the Rights of the Child defines “children” as human beings under the age of 18: and it is to all these “children” I am referring.For better or worse, people under 18 all live in the confines of children’s rights discourse and child pornography laws.While there may well be significant distinctions to be made between prepubescent children and post pubescent youth, they are not distinctions I want to assume or reinscribe regarding sexuality and technology in relation to sexting: Following Freud, I recognize both children and youth as sexual beings, whatever that means differently to both, and I have no doubt that both children and youth (and adults, for that matter) are using digital technologies as part of their sexual repertoire.
Second, what is this “sexting,” which so neatly brings together the “sexuality” and “technology” dimensions of this panel (and to which, I believe, the third paper on this panel will also speak)? “Sexting,” a 21st-century combination of “texting” and “sex,” has been defined variously as the sending of nude or semi-nude photos or videos and/or sexually suggestive messages via cellphone texting or instant messaging.Although the word “sexting” is only a few years old, a handful of recent incidents in the United States, some misplaced and heavy handed legal overreactions charging children exchanging consensual nude photographs of themselves with the production, dissemination, and possession of child pornography, a single recent American online survey commissioned by the unusual alliance of the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl magazine, a media feeding frenzy, and even a May 6, 2009 episode of Law and Order have all served to create the impression that in the past few months there has erupted an epidemic of sexting among youth and that this is a thoroughly bad thing.
Although depicted in the media as a “nationwide” epidemic, in the last year or two there have been major police prosecutions for sexting with a limited number of individuals in at most a dozen U.S. states.There have been no cases of that kind in Canada.(I’ll leave the Australian cases for our colleague from Australia; significantly, I have not found instances from Europe except a single reference surmising that “the practice is not thought to be prevalent in Britain” (Times Online).Thus, the “epidemic” of sexting consists, according to breathless print and online sources, of four Grade 6 and 7 students in Alabama; three Pennsylvania girls (aged 14 and 15) and three male classmates (aged 16 and 17) (Wikipedia); 14-year-old Michael Harmon who receiveda photo of a classmate which showed her bare breasts (GASP); a 14-year-old Florida boy who sent a photo of his genitalia to a female classmate because he was “bored” (YAWN) (Macleans); a teenage boy in Indiana (Wikipedia); a 15-year-old Ohio high school girl —from the questionably named Licking Valley High School (“Porn Charges for ‘Sexting’); a 17-year-old Ohio girl;“two Ohio teenagers who had nude photos on their cell phones of two 15-year-old classmates” (Wikipedia); “dozens of white-faced 12- and 13-year-olds and pimply 14-year-olds with twitchy legs” in Colorado (“’Sexting’: A Disturbing”); two 16-year-old girls who took side-profile pictures of themselves naked after taking a shower (“’Sexting’: A Disturbing”); a group of 11- to 17-year old boys who traded photos of semi-nude or nude teenage girls (Sexting Girls); a 14-year-old New Jersey girl who posted 30 explicit nude pictures of herself on MySpace.com (Sexting Girls); six 12- to 14-year-olds from Massachusetts (Sexting Girls); a Texas eighth-grader who spent the night in a juvenile detention center after his football coach found a nude picture that a fellow student sent him on his cell phone (“’Sexting’ Shockingly”); a Wisconsin 17-year-old (“Sexting Craze”); a New York 16-year-old (“Sexting Craze”); and 18-year-old Phillip Alpert of Orlando, Florida who received unrequested naked pictures of his 16-year-old girlfriend but who mass-emailed the photos to the girl’s relatives when they broke up.
One of the major problems with public reactions to “sexting” is a complete conflation of nudity with sexuality and pornography.Thus, snapshots of two Pennsylvania 13-year-old girls which showed the teens “in their white bras” resulted in threats from a district attorney of charges of child pornography (Sexting Girls Facing).The photo of a 17-year-old in the same case showed “her just out of the shower, with a towel wrapped around her waist and her breasts exposed” (Sexting Girls).As the American Civil Liberties Union pointed out in its suit against the overly eager District Attorney, “Neither of the two [pictures] depicts sexual activity or reveals anything below the waist” . . . However, according to ACLU, “The district attorney told a group of parents and students… that he has the authority to prosecute girls photographed in underwear . . . or even in a bikini on the beach, because the photos are “provocative” (ACLU).Clearly, these photos do not fit under Pennsylvania’s child pornography law, which defines this felony based on photos “of a minor engaged in sexual activity, ‘lewd exhibition of the genitals,’ or nudity that is meant to titillate” (Sexting Girls).
Legal responses to teen sexting in the U.S. have been sledgehammer-like, including production and possession of child pornography, a felony which in some states can result in these children being labeled as registered sex offenders for decades; felony obscenity; being declared an “unruly child”; contributing to the delinquency of a minor;“sexual abuse of children… or open lewdness” (District); possessing and distributing material of a child in a sexual act (Sexting Girls); and disseminating indecent material to a minor and endangering the welfare of a child.The 18-year-old Florida man who sought revenge by emailing nude photos of his 16-year-old girlfriend to her family was convicted of transmission of child pornography, resulting in jail time, a label of “sex offender” until he is 43, which results in his inability to live with his father because his father lives near a school and with him having to attend classes with convicted sex offenders (Commentary, Mike Galanos, CNN).As Lithwick concludes, “the criminal justice system is probably not the best venue for addressing the sexting crisis. . .prosecutors have charged the senders of smutty photos, the recipients of smutty photos, those who save the smutty photos, and the hapless forwarders of smutty photos with the same crime: child pornography.Who is the victim here and who is the perpetrator?Everybody and nobody. (“Textual”).
In fairness, there has been some pushing back against this legal overzealousness.The ACLU was successful in making its case that the teenaged girls in question did not consent to having their pictures distributed, their images were not pornographic, and that the photos were protected under First Amendment speech (Sexting Girls).Several states have recently moved towards aligning their laws more closely with teenagers’ practices in relation to sexuality and technology, Vermont legalizing consensual exchange of graphic images between people 13to 18 (Wikipedia) andOhio and Utah reducing sexting from a felony to a first degree misdemeanor.Although one online writer has argued that “case law has not kept up with the impact of digital media on teenage behavior” (“Sexting Craze”), I would argue that this has the order reversed: case law has not kept up with the impact of teenage behavior on digital media.Or, more precisely, as David Oswell argues in “Ethics and Techno-Childhood,” “Childhood is never disclosed in isolation; it is always accompanied by technology.Technology makes childhood visible as a problem.In doing so both technology and childhood, like leaky vessels, leak into each other.I refer to this as techno-childhood: the interrelation between, and the mutual constitution of, technology and childhood” (170).When Toronto criminal lawyer Edward Greenspan quips that “the only way to stop teens from sexting is to take away their cellphones, and teens would sooner give up a lung,” he unwittingly recognizes this tight connection between children and technology, technology being what Nick Lee calls “an extension of childhood.”
What interests me most about the purported dystrophic epidemic of sexting is how these widely publicized legal cases—cautionary tales writ large—and a single online survey about teens, young adults, and sexting have fuelled and shaped a media frenzy resulting in articles with titles such as “The Sexting Scare,” “Sexting Craze Leads to Child Pornography Charges,” “20% Chance Your Child May Be a Sex Offender!,”“Sexting Poses Risk to Teens’ Health,” “Sexting Teens Face Prison and Sexual Predator Status for Nude Photos,” “Want to Stop Sexting, CyberBullying & Digital Disease?,” “Textual Misconduct: What to Do About Teens and their Dumb Naked Photos of Themselves,” and “ Technology Fuelling Sexting Craze.”Not to mention a Website: sextingisstupid.com.
In spite of these headlines, as Macleans magazine rightly notes, “the statistical proof of a sexting epidemic is scant: one lone survey.”Indeed, a much more careful reading of the “Sex and Tech” survey is called for. . . . It was conducted completely online; its commissioners no doubt have vested interests in the results; it is clearly not directly applicable to Canada; its definition of teens as ages 13 to 19 and young adults as 20 to 26 may fit the literal definition of “teenager,” but it also perversely skirts legal definitions of “childhood” including those in relation to child pornography, thus skewing statistics about teensexting accordingly; most importantly, the very broad category of “nude or semi-nude” photos used in the survey questions recognizes no distinctions between nudity, sexuality, and pornography.However, even if we accept the survey data, there is much more to learn than most media reports suggest.Article after article expresses shock that 20% of teens sext, none recognizing that that implies a more amazing fact—that 80% of teens do not.The survey shows that far more young adults (33%) than teens (20%) are sexting, yet no comparable alarm about young adults has emerged.The survey indicates that twice as many teens and young adults send sexually explicit text messages (39%of teens; 59% of young adults) as send nude photos (20% of teens, 33% of young adults), yet all media attention focuses on visual images.According to the survey, more girls sext than boys: 22% of teen girls vs. 18% of teen boys; 36% of young adult women vs. 31% of young adult men.Although most accounts explain this as boys pressuring girls to sext, more girls in the survey consider sexting “fun and flirtatious.”(51% of teen girls give pressure from a guy as their reason for sending, while 66% of teen girls and 72% of young adult women claim the activity to be “fun & fliratious.”)Children’s and particularly girls’ sexual agency are not generally or comfortably acknowledged in North America, and the findings of this survey call out desperately to be analyzed in terms of girls’ sexual agency in relation to sexting.
While Canadian media responses have generally been more muted to the sexting epidemic, they too easily fall into the trap of assuming that what is true in the United States will necessarily be true here too.And so, the Vancouver Province says that sexting “has Canadian officials on the alert” even though “there have been few [no?] publicized cases in Canada to date.” “Cpl. Annie Linteau, the RCMP B.C.’s spokeswoman, said she hadn’t heard of the trend.“But I’d be surprised if it wasn’t happening here,” (O’Connor).Indeed, there may be critical differences between sexting in Canada and south of the border.It is not a crime in Canada for consenting young people under 18 to exchange nude photos, for example.And in Vancouver, “… local school officials said unlike their American peers, they would be reluctant to report sexting as a crime to police.”
There are a few sane voices in the furor over sexting.JSS writes in an online column “Sexting Hysteria,” “the hysterical and infectious drive to stem sexting among teens and to put it on the level of child pornography has accelerated in just a few weeks. . . . Nothing has actually changed except that the kind of adults who do not engage in sexting, themselves, found out that teen-agers were doing it….Teen-agers fumbling with their sexuality and technology is not something that should scare anyone into legislation, and schools shouldn’t be overreacting either.” (jss, “Sexting Hysteria”).Indeed, one could argue that in some ways virtual sexual activities are safer for teens than actual ones: nobody ever got pregnant or received an STD directly from an online exchange.In “Is ‘Sexting’ Same as Porn?,” Goodman writes, “There is nothing particularly new about young people taking pictures of themselves.It’s as old as the Polaroid.”In fact, I’d argue it’s older than that.Goodman also argues that “The panic not only erases the line between stupid and criminal, it dilutes the real horror of child pornography.”Lithwick raises concerns that girls are being punished disproportionately, being charged with producing while boys were merely charged with possessing pornography.Clearly, a key danger in sexting is not in the initial exchange of nude photos between two partners or potential partners but in the dangers of losing control of those images in the powerful, immediate, omnipotent, eternal, digital world.In a blog, Dann writes,“these kids don’t get the idea that everything you do online becomes a digital tattoo. ….Sexting is a dumb thing to do, not only because it effectively gives your body away to everyone else, but because you have no control over what happens after you hit the send button.” (Dann’s Blog) .
To contextualize youth sexting we should remember our own sexual histories as young people.Apart from digital media’s power to disseminate information quickly and broadly, there may be nothing radically new about sexting.The closest I ever came to being expelled from school was in Grade 2, when I was hauled before the authorities for looking up girls’ dresses.In 1957, in an Ontario village, as the seven-year-old son of a Protestant clergyman, I was trying my best to learn about sex.At 18, as a don at an Ontario University, I tried to make a political parody of a student council election by posing for the student newspaper—they had cameras then, only the cameras needed film and the newspaper needed to be printed—clad only in a jockstrap; although I was thinly disguised by freckles to make me resemble Mad magazine’s Alfred E. Neuman, I had to go underground for several days until the Associate Dean cooled off.These events, notably, were before television, minicomputers, the Internet, and digital photography.However, much as contemporary nostalgia might view this as an “earlier, simpler time,” and much as current moral panics about youth sexuality might consider children’s and youths’ current sexting behaviors as depravities signaling the end of civilization, I would suggest that the “innocence” and “experience” of my ancient childhood might actually not be so far separated from the “experience” and “innocence” of many or most sexting exchanges.
Perhaps, then, adult alarm about technology and youth sexuality is a red herring—except insofar as it relates to cyber-bullying and sexual harassment: one 18-year-old American woman committed suicide when a nude photo she sent to her then boyfriend came back to haunt her.Are there, for example, significant differences between teens learning to kiss while playing “Spin the Bottle” face-to-face and teen “chicks” and “dudes” going online to “Espin.com” to “spin the bottle and start flirting!” with “Over 4 Million Hotties”?Are there differences between youth playing face-to-face versus online “Strip Poker,” or between children investigating each other’s body parts while playing “Doctor” and teens sharing cell phone images of their naked bodies?As one Macleans reader writes, “Young people are showing each other their naked bodies! When did that ever happen before?”
Child pornography laws arise out of human rights legislation, particularly the United Nations Convention on the Rights of the Child.However, children’s rights advocates have been more preoccupied with “protection” and “prevention” than with “provision” and “participation” rights in relation to children and their sexuality.The CRC explicitly advocates protection of children from sexual abuse, sexual exploitation, coerced sexual activity, unlawful sexual practices including child prostitution, and being used in pornography.Guiding principles of the CRC include “the best interests of the child,” the centrality of children’s participation rights, and the “full and harmonious development” of the child’s personality.Yet where in the CRC are children’s provision rights to healthy sexual being and participation rights in exploring and expressing that sexual being?Article 12’s right of the child to express his or her views freely? Article 13’s “freedom of expression . . . freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice”?; Article 16’s right to privacy – “No child shall be subjected to arbitrary or unlawful interference with his or her privacy . . . or correspondence”: as online writer DillthePill writes, “what the heck were the teachers doing looking through the students phones?”; Article 24’s “the right of the child to the enjoyment of the highest attainable standard of health”? Article 28 and 29’s rights to education?; Article 31’s right to engage in play and recreational activities appropriate to the age of the child ?
Is nudity pornography?Not necessarily.Are consensual exchanges of naked photos between young people child pornography?Not in the first instance.Should child pornography charges be leveled against young people sharing naked photos of themselves?Definitely not.Can young people get into trouble by sharing sexually suggestive digital text, images, or video?Yes.Can this have real world consequences?Absolutely.However, teenagers have no monopoly on foolish choices and devastating consequences.Think, for example, of the infamous, intercepted cellphone conversation between the future King of England and his paramour in which he fantasizes about being a tampon so he can “live in her trousers”: no doubt that would have been sexting had the technology existed.When, we must ask, in Western culture, did nudity become pornography, youth sexuality perverse, digital technologies the tail wagging the dog, and when and how and why have we forgotten children’s participatory rights as sexual beings?
By Dr. Marty Klein
