When the “Child” in “Child Pornography” is the Child Pornographer

A US decision this month found that a 17-year-old who sent a picture of his own erect penis was guilty of the offence of second degree dealing in depictions of a minor engaged in sexually explicit conduct.

The person in question was already serving a Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier adjudication for communicating with a minor for immoral purposes when he began harassing one of his mother’s former employees, a 22-year-old single mother with an infant daughter.

That harassment began with telephone calls making sexual sounds or asking sexual questions. On the afternoon of June 2, 2013, she received two text messages: one with a picture of an erect penis, and the other with the message, "Do u like it babe? It's for you. And for Your daughter babe."

The appeal was focused on a couple of questions:

Was charging him with this offence a violation of his freedom of speech?

Key to the reasoning here is the recognition that minors have no superior right to distribute sexually explicit materials involving minors than adults do.  To interpret the statute differently, in the opinion of the court, would render the statute meaningless. 

The First Amendment does not consider child pornography a form of protected expression. There is no basis for creating a right for minors to express themselves in such a manner, and, therefore, no need to place a limiting construction on a statute that does not impinge on a constitutional right. Accordingly, we conclude that the dealing in depictions of minors statute does not violate the First Amendment when applied to minors producing or distributing sexually explicit photographs of themselves.

Was the offence too vaguely worded?   

The argument here is simple – would a reasonable person really think that sending a photo of his own genitals would constitute the crime of child pornography?  Again, the court deals with this handily, finding the statute wording to be clear.  Whether many teens engage in sexting is immaterial – the test isn’t whether many people aren’t following the law, but rather whether they are unable to understand it.  

Nothing in the text of the statute suggests that there are any exceptions to its anti-dissemination or anti-production language. The statute is aimed at eliminating the creation and distribution of images of children engaged in explicit sexual behavior. It could hardly be any plainer and does not remotely suggest there is an exception for self-produced images.

Finally, the ACLU made arguments on policy reasons.

Was it irrational or counterintuitive that the subject of the photo could also be guilty of its distribution?  The court thinks not – there is no requirement for a specific identified victim, because the focus is on the traffic in images. 

Another policy issue raised was the concern about the application of such a precedent to a case of teens “sexting” each other.  This could potentially have been a stronger policy position had this *been* a case of sexting – but it was not.  This wasn’t communication between equals – it was harassment. 

Is This a Problem?

Clearly, dick pics are ubiquitous these days.  Is this decision an overreaction?  No. It’s not.  Know what else is ubiquitous these days?  Harassment and hate directed at women in online spaces (and offline). 

Reasonable people have raised concerns about the inclusion of registering as a sex offender as part of the sentence. 

To be clear, the sentence was time served, and registration as a sex offender. 

• Registration of an individual who was already in treatment (thus far ineffective) for communicating with a minor for immoral purposes. 
• Who had unrelated pending charges (dismissed by agreement of the parties) for indecent exposure.  
• And for behaviour that was part of a campaign of sexual harassment. 

Frankly, that inclusion of registration as a sex offender is not unusual or uncalled for.