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DEF OF UNFAIR: NJ COPS THREATEN 17-YEAR-OLD VICTIM OF REVENGE PORN WITH CHILD PORN CHARGES FOR SELFIES

April 19, 2014

Boy meets girl.  Girl sexts boy nudie pics.  Boy and girl break up.  Boy meets new girl.  New girl distributes old girl’s nudie pics far and wide.  Cops arrest under child pornography laws.

A couple days ago I blogged about that regrettably standard revenge porn scenario unfolding in the New Jersey media.  The players are ages 16 and 17.

New Jersey is one of the seven states with revenge porn laws for this very fact pattern.  For some bizarro reason the teens are instead being charged under the state’s ill-fitting child pornography laws.  To be precise, the charge is second degree endangering the welfare of a child stemming from a child engaged in a prohibited sexual act or in the simulation of the act as well as a pending fourth degree charge of knowingly having the pictures.

That’s absurd enough, right?

But then it gets even loopier.  Police are threatening to arrest the victim under child porn laws too.  Is the Dunkin Donuts in Bergen County lacing its glazed crullers with LSD?!

If there’s one way to distract a 17-year-old from the most humiliating and shaming thing that’s ever happened to her, it’s for a bunch of imbecile law enforcers to inform the media that they may also press charges against her for doing nothing worse than trusting the wrong people and being the victim of the consequential cruelty.  Bet she’s excited for spring break to end this Monday.  Is Amelia Bedelia working undercover in Bergen County’s police department?  Any prosecutor who would charge the victim here is interpreting the law so literally that if I were to tell him to go @#$% himself, no doubt he’d run to a mirror and start contorting.

As noted by Sarah Wastler, criminalizing consensual teen-to-teen sexting “would in effect be declaring the subjects of the images simultaneous victims and perpetrators.”   What’s the 17-year-old victim going to do?  Testify against herself?

Child pornography laws were created to stop adults from raping and molesting and sexually coercing children.  These laws, when drafted, did not anticipate the selfie tsunami that technology would introduce years later, nor the ease at which everybody, including kids, could take and share photos and videos.  Teen-to-teen consensual pic sexting is far afield from what our lawmakers had in mind.

It’s a waste of resources to use child pornography laws to prosecute teens for taking sexual selfies and for sending them voluntarily to eager and voluntary recipients.  Why not instead harness that energy to go after real people that abuse children?  Or, to help my clients when they report internet sex crimes to the police who ask what Twitter is?  Prosecuting teens for having and sharing their own sexual selfies, among other problems, results in a law unfairly targeting a class of people.  You hear that?  It’s the constitution knocking.  Adults taking and sending nude and sexual selfies to their own peers are afforded greater protections under the First Amendment, but if somebody underage does it?  It’s child pornography.  Child pornography is obviously not protected speech.

In 2010 the 3rd Circuit very carefully sidestepped around the issue of whether a teen’s own sexual selfies are protected by free speech and thus outside the scope of child pornography.  In Miller v Mitchell sexualized (but not fully nude) pics of three underage girls were found by school officials on phones confiscated from other students. The DA threatened to charge the girls depicted with child pornography crimes unless they agreed to attend a “re-education program.”  (Note:  NJ has a similar diversionary program in teen sexting scenarios.)  The ACLU-PA obtained a preliminary injunction enjoining the commencement of criminal charges on the grounds that the girls’ right to free expression was protected under the first amendment and that the forced re-education program interfered with the parents’ rights under the fourteenth amendment to direct their childrens’ upbringing.  The Third Circuit agreed on the due process grounds, but avoided ruling on whether the images were protected under the first amendment.

No doubt sexting images is not innocuous all the time.  They can be the result of coercion. They can be used as revenge porn if others share it without the subject’s consent.  They can be accessed by hacking. They can fall into the hands of actual sexual predators.  And perhaps the use of coercion and nonconsensual redistribution is more pervasive among underage people than those with more practiced decision making skills — the prevalence of teen revenge porn results from both: 1) misguided judgment in determining the longterm trustworthiness of recipients of the images and 2) poor decision making and impulse control by the recipients of the images causing a greater propensity to later distribute against the subject’s consent when angry at the subject.  However teens should have the right to explore and express their sexuality and to be daring with people they trust. Sadly, the development of judgment and libido don’t always synchronize.  But trusting the wrong people is not exclusive to young people, as the pages and pages and pages and pages ad nauseum of adults featured on revenge porn websites illustrate.  For any age, though, taking the picture and sharing it voluntarily should not trigger criminal liability.

Although fewer sexted images by teens would reduce the number of teen victims of revenge porn, outlawing teens from taking and sharing their sexual pics is as misdirected and unrealistic as sex education using abstinence as its cornerstone to end teenage pregnancy. Dictating the rules and boundaries of kids’ use of the internet and technology is the job of parents – not law enforcers.   Same with overseeing the more outward manifestations of their kids’ sexual expression.

Seriously, if these law enforcers weren’t so myopic, they’d see that the harm derives not from the picture existing.  Nor from the pics being voluntarily sent from the girl to her boyfriend.  The harm starts when the distribution is usurped by persons who don’t have the authority to do so.  In other words, the crime is revenge porn.  Not the pics themselves.  New Jersey, don’t square-peg-round-hole this incident.  Use revenge porn laws to punish revenge porn.  Not child porn laws.  And for g-d sakes, leave the victims alone.