Tuesday, July 23, 2013

Sexting and Consent

Some time ago there was a national controversy about a young man who raped his drunk date during a party after the prom.  A lot of useless talk happened about how the young man's life was ruined because of his conviction, not so much recognition that he had done some pretty long lasting damage to his date.  The more interesting side story was that during this same wild party there was another pair of teenagers where the boy was legally prosecuted for child molestation because the laws in their state assumed that was what all oral sex between teenagers was, even though consent was given and the participants were close enough in age no crime would have been committed if they had just risked pregnancy instead of throat cancer.  It seems to me the guiding principles for the law should be protecting consent, recognizing the mental maturity issues involved in consent, and preventing exploitation.  Charging a teen boy for child molestation because he broke a cultural taboo even though no exploitation or consent violation occurred just seems wrong.

 Recently, I saw a blog post which suggested we should worry about teen sexting because those engaged in it could be considered guilty of production, possession, and distribution of child pornography and that supposedly many jurisdictions were aggressively prosecuting such cases, even pushing to have teens tried as adults.  The blog post referred to a policeman who routinely searched young men's cell phones on the assumption that naked pictures of girlfriends could always be found to charge the young men with child pornography crimes.  This seems to beg the same kinds of questions as the case of the young man charged with child molestation.  If no exploitation occurred, if consent was obtained, and the participants were of legally permissible ages to have had sex with each other, should it be illegal for them to share erotic photos of themselves with each other?  It might be stupid, but I don't think it should be illegal.

Obviously a host of other issues come up.  If a photo was taken without consent or shared with the purpose to humiliate that should be illegal.  If the photo is sent as an unwanted advance that should constitute sexual harassment and be illegal.  If a couple exchanges such photos with consent but then shares them with the purpose to humiliate after they break up that should be illegal.  If such a photo is shared between people who are far enough apart in age that sexual acts would be considered statutory rape then it should be considered illegal and a child pornography crime.  These different sorts of crimes should have punishments appropriate to the type of exploitation occurring.  For instance, a young man who harasses young women by sending unsolicited pictures of his crotch deserves a different punishment than a child pornographer.

Its possible all of this is meaningless because the blog article I read might be over playing how such behaviors are actually prosecuted.  But, its possible the legal grey area is more important for its vagueness rather than for a history of overzealous convictions.  But it sounds to me as if it might possibly be time the child pornography laws were updated so that protecting consent and preventing exploitation are the principles that matter, not whether cell phones existed when the laws were written.