Puzzling Over Some Wacky Ideas about Teenagers, Sex, Technology, and the Law

For as long as I have been a reader of Slate, which probably goes back to around 2001, I have been a fan of Dahlia Lithwick's writing for the online magazine. Even before I'd settled on attending law school after graduation from college, I'd long enjoyed her Supreme Court Dispatches series, which summarized the facts of many of the more notorious cases on the Court's docket, the legal issues attending thereto, and often included transcriptions of the more raucous parts of the oral arguments. Good, good fun, to watch the Court, and especially to do so in the company of such an astute and professional Court-watcher as Lithwick.

Lately though, Lithwick's columns are falling short. A lot of her recent articles on Slate have been cross-published in Newsweek, and those articles have proven particularly lackluster. This weekend, she weighed in on what has become a trend in adolescent circles, namely "sexting," which apparently means taking nude photographs of oneself and electronically transmitting them to other teens. In a number of cases cited in the article, senders and recipients of the sext messages have been charged with crimes related to child pornography. Lithwick forcefully argues that such charges are inappropriate.

We'll assume for the sake of argument that the photographs in question actually qualify as prohibited child pornography in the prosecuting jurisdictions. It turns out though that this assumption may not be warranted in all cases. For instance, in Louisiana, the crime of pornography involving juveniles is governed by La. R.S. 14:81.1. Under that statute, a depiction of "sexual conduct" is required in order to cross the threshold of criminality, and "sexual conduct" is defined as "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals." From this language, it's not clear that a simple nude photograph would be covered; cases would presumably turn on how "lewd" a particular exhibition of the genitals might be.

Anyway, like I said, let's assume that the jurisdictions in question have broader anti-porn laws, or that the photos forming the basis for prosecution are particularly "lewd." Why then should they not be prosecuted? Lithwick can speak for herself:

One quick clue that the criminal justice system is probably not the best venue for addressing the sexting crisis? A survey of the charges brought in the cases reflects that—depending on the jurisdiction—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.

Lithwick seems to be suggesting that, in these limited circumstances, child porn is a victimless crime. Of course, you could point to the analogous case of a drug deal: both the seller and the buyer can be charged with a crime. It's equally difficult in that case to identify a "victim," but nobody seriously thinks that a clearly identifiable "victim" is a prerequisite to a certain act being declared criminal. In the case of both illegal drugs and child pornography, the justification for criminalization is the same: when certain revenue streams cause aggregate damage to the physical, mental, or sexual health of the public, those revenue streams ought to be shut down.

Lithwick quotes a police captain in a Pennsylvania case, who argues that the prosecutions are justified, saying, "Once it's on a cell phone, that cell phone can be put on the Internet where everyone in the world can get access to that juvenile picture." She then trivializes his argument, writing:

The argument that we must prosecute kids as the producers and purveyors of kiddie porn because they are too dumb to understand that their seemingly innocent acts can hurt them goes beyond paternalism. Child pornography laws intended to protect children should not be used to prosecute and then label children as sex offenders.

Parenthetically, I'll admit that Lithwick is right on when she says that registration as a sex offender would be an inappropriate punishment for teenage sexting. Those registries are supposed to identify criminal sexual deviants, and whether it's good behavior or bad, nobody ought to maintain that the urges that lead to teen-to-teen sexting are anything other than mainstream.

But again, Lithwick's rush to identify the victim throws her off the scent of what's really going on here. This is not an exercise in paternalism meant to protect the interests of emptyheaded would-be teen sexters. Child porn statutes are meant to shut down commercial activity in contraband, and it is reasonable in that light to enact laws that would curtail production of contraband, including small-scale production.

And besides, the prosecuted teens will ordinarily be benefited by the same procedural safeguard afforded to minors generally in the legal system: prosecution before a specialized juvenile court, with relaxed formalities. Imagine yourself as the juvenile judge before whom a sexting case is brought. You have wide latitude in terms of punishment. Do you really want to put a teen sexter in juvy, much less in prison? No! Your role is the same as it is in the vast majority of other juvenile prosecutions: to ensure the offenders understand the gravity of the situation, the reasons why their conduct is prohibited, and to scare them a little bit. Then you assign them a few hours of community service. In other words, teenagers are already benefited by regulations meant to ensure that their punishment reflects their relative level of informal culpability.

But here's where Lithwick completely loses me, and it's a matter of sort of general penology, rather than something specific to sexting:

Many other experts insist the sexting trend hurts teen girls more than boys, fretting that they feel "pressured" to take and send naked photos. Yet the girls in the Pennsylvania case were charged with "manufacturing, disseminating or possessing child pornography" while the boys were merely charged with possession. This disparity seems increasingly common. If we are worried about the poor girls pressured into exposing themselves, why are we treating them more harshly than the boys?

Allow me to retort with an example from physics. Suppose 10 pounds of force is being applied to an object, but you want the object to stay put. What should you do? Apply 10 pounds of force in the opposite direction. But if 100 pounds of force is being applied, 10 pounds won't be enough; instead you should apply 100 pounds. In other words, if you want to curtail girls sending naked pictures of themselves to boys, and they feel intense peer pressure to do so, a seemingly plausible course of action would be to push back harder, by increasing the applicable punishment to such an extent that it balances or overcomes peer pressure.

Now obviously I make no claims to expertise in child psychology, and can't vouch for whether the push-pushback illustration accurately models a workable incentive structure for teenage girls thinking about sex. But it passes the smell test anyway. Even if it's wrong, it's at least on the side of common sense, so that I think anyone who would take the contra bears the burden of showing why such an incentive structure won't work. Certainly it's not as mystifying as Lithwick seems so hellbent on implying.

But then again, maybe Dahlia's right. I mean, gang initiates feel intense peer pressure to commit murder. So maybe we shouldn't be so hard on them.