sexting – Techdirt (original) (raw)

Stories filed under: "sexting"

Maryland Legislators Pass Bill That Would Keep Most Teens From Being Prosecuted For Sexting

from the more-helping,-less-hurting dept

It’s been a delayed reaction, but legislators are finally trying to do something about the horrific outcomes that result from advances in technology colliding with laws that have been on the books for decades. Smartphones are omnipresent and teens are using them just like adults use them. Sexting — the sending of explicit images to willing recipients — shouldn’t be illegal. And yet it is because some of those participating in this consensual distribution of explicit images are minors.

Operating under the belief that no one engages in sexual acts until they reach the age of consent, law enforcement has managed to turn this form of communication into a lifetime of misery for participants. Perhaps the most disturbing aspect of using child porn laws to prosecute minors for sexting is the fact that actual sexual acts would be legal under the same set of laws.

Rather than allow parents to handle sexting by minors, prosecutors have stepped in to turn consenting teens into sexual predators, even if they’ve done nothing more than send images of themselves to another teen. There’s a massive logical leap that needs to be made to turn a teen photographing their own body into their own child pornographer, but cops and prosecutors have been willing to bridge that gap over reality to prematurely end these teens’ lives. Charges stemming from child porn charges — even when the teen has done nothing but “exploit” themselves — come with a lifetime of downsides, thanks to sex offender statutes.

Maryland’s legislature is trying to mitigate the damage done by existing laws — ones passed by legislators who could not have possibly foreseen teens willingly (and easily) distributing sexual images amongst themselves. The absence of any actual child pornographer isn’t something addressed by child porn laws, so the Maryland legislature has decided to make it a bit more difficult for prosecutors to convert questionable judgment calls by teens to criminal charges.

A bill that defines how to handle juveniles charged with sexting in Maryland passed in the House with a wide majority on Wednesday.

The bill, which passed on a vote of 131-8, doesn’t legalize sexting for juveniles, but it defines certain cases that aren’t a part of child pornography laws.

In addition to defining certain cases, HB0180 states that a juvenile in violation would not be committed to custody — unless there are extraordinary circumstances — and would not be subject to register as a sex offender.

It’s not great. (But it’s still pretty good.)

“Great” would be terminating any prosecutorial options for the consensual sharing of explicit images between teens. But it’s better than what’s out there now, which allows prosecutors who’ve never exercised discretion in a positive way from railroading teens into a lifetime of sex offender list misery.

What it does do is blunt the most harmful edges of existing law. Non-consensual sharing would still be a crime, but no teen can be considered a producer or possessor of child porn unless they’re over the age of 18. It also considers sexting to be a crime if the participants are more than four years apart in age, something that aligns sexting provisions with state law on consensual sexual acts between teens.

But there are still concerns. First, the bill [PDF] may have been passed but there’s no guarantee it will become law. Second, it still gives prosecutors a lot of leeway when it comes to prosecution of edge cases. But hopefully it will deter the sort of insanity that inspired this legislation.

All three House bills were drafted in response to a case in 2019 involving a teenage student who sent an illicit video of herself with a male to two of her friends, a video that was distributed by one of the friends to the rest of their high school.

Instead of helping, a school resource officer believed the teenager committed a crime, Lisae Jordan, executive director and counsel of Maryland Coalition Against Sexual Assault, wrote in testimony to lawmakers.

The student was charged in Juvenile Court with child pornography and obscenity.

It really takes a sick mind to view someone who’s being subjected to abuse as a criminal. But that’s just how some people think. This bill, if passed, will prevent idiots like this from treating the victims of non-consensual sharing of intimate images from being treated as child pornographers. Anything that strips discretion from people who’ve proven incapable of exercising it wisely is better than doing nothing.

Filed Under: child porn, csam, maryland, sexting

Maryland Appeals Court Says Sexting Teen Is A Child Pornographer

from the just-like-state-lawmakers-intended-i-guess dept

Far too many prosecutors in far too many states have trouble reading child porn statutes. Instead of reading them how they’re intended to be read — to punish adults who victimize minors — they read them to include the criminalization of minors participating in sexting. When these pictures and videos are shared, these justice system components become contortionists in order to treat subjects of recordings as their own child pornographers.

If only the courts weren’t so willing to help. Instead of stopping this abuse of the law, they become part of the problem, offloading it on legislators who just aren’t all that willing to alter existing child porn laws. Some legislators no doubt believe minors should be treated as sex offenders for engaging in sexting, even when the sexual acts themselves are legal. It’s the documentation that’s the problem.

Mark Joseph Stern of Slate has uncovered another one of these unfortunate incidents. This one is more unfortunate than most because of the actions of one of the recipients of the recorded sex act.

In 2016, a 16-year-old Maryland student known as S.K. in court documents sent a brief cellphone video to two friends. The clip depicted S.K. performing oral sex on an unknown man—a legal activity in Maryland, where the age of consent is 16. She sent the video as part of a game in which the friends attempted to “one-up” each other with “silly photos and videos.” A few months later, S.K. had a falling-out with one recipient of the video, a 17-year-old boy known as K.S. He began to mock S.K., allegedly writing that she was a “slut” on classroom blackboards. He then reported the video to the school resource officer, Eugene Caballero.

Once the school cop was dragged into this, it was all over. Cops have a very small set of tools and they apply them carelessly to situations that don’t demand this specialized equipment. S.K. went to a meeting with the school resource officer under the assumption he was going to help stop the distribution of this video. Of course, Caballero wasn’t going to help with that. Caballero was just collecting evidence to be used against S.K., who at this point was arguably the victim of revenge porn, given the unauthorized sharing of the video she’d recorded. Caballero took her statement and passed it on to state prosecutors. This was the end result:

Maryland then charged S.K. with illegally distributing child pornography and displaying an obscene item to a minor. She was found guilty by a juvenile court, which found her delinquent as a distributor of child pornography. The court sentenced S.K. to supervised probation and placed her on electronic monitoring. Her punishment required her to report to a probation officer periodically, allow him to visit her home, obtain permission before leaving the state, submit to weekly drug urinalysis, and complete an anger management course.

S.K. challenged the sentence, pointing out that the law does not provide for charging the subject of alleged child porn with child pornography production. Like a lot of these laws, the language unfortunately appears to allow victims of child porn production to be treated as perpetrators. You are your own child pornographer, says the Maryland Court of Appeals [PDF].

The court compares other states’ poorly-written laws with Maryland’s poorly-written law and comes to the conclusion that a minor victim of revenge porn is the producer of child pornography.

We refuse to read into the statute an exception for minors who distribute their own matter, and thus we believe S.K.’s adjudication as delinquent under CR § 11-207 must be upheld.

That reading seems sympathetic to the state’s arguments. It said the state law was put in place to punish any distribution of child porn, no matter who created it. Even if porn contained a recording of two consenting minors (both participants were above the legal age of consent), the creation and distribution of the recording was a criminal act. The court looks at the law and decides the legislative intent was to treat minors as their own pornographers.

Here, S.K is prosecuted as a “child pornographer” for sexting and, because she is a minor, her actions fell directly within the scope of the statute. The General Assembly has consistently expanded the scope of the statute to assist in the eradication of any form of child pornography. As written, the statute in its plain meaning is all encompassing, making no distinction whether a minor or an adult is distributing the matter.

Therefore, based on this intent and the unambiguous language, we believe S.K.’s conduct falls within the purview of the statute.

It then tosses in a half-hearted apologetic shrug.

In affirming this adjudication, however, we recognize that there may be compelling policy reasons for treating teenage sexting different from child pornography.

The dissent says this is wrong. A plain reading of the law makes it clear the state shouldn’t be punishing subjects of child porn as child pornographers. This is a failure of the court, according to the dissent, not a failure of legislation.

As provided by S.K., the statute creates a dichotomy “between the pornographer, or “person,” and victim, or “minor” so that these two actors are different individuals[.]” 1 Therefore, I conclude that the plain language of Crim. Law § 11-207(a)(4)(i) does not permit S.K. to be delinquent for transmitting a visual representation of herself. There is ambiguity in Crim. Law § 11-207(a). (“We have said that there is an ambiguity within a statute when there exist two or more reasonable alternative interpretations of the statute.” Bellard v. State, 452 Md. 467, 481, 157 A.3d 272, 280 (2017)). When such ambiguity exists, “the job of this Court is to resolve the ambiguity in light of the legislative intent[.]”

If the court really wanted to examine legislative intent, it could have started by examining statements of intent made by the court itself in other cases.

In reflecting on a Petitioner’s First Amendment challenge to his conviction of photographing a minor engaged in sexual conduct in violation of § 11-207(a)(2), **this Court asserted that “we balance the right to freedom of expression against the right of the State to protect children against sexual exploitation.**” Id. at 36, 641 A.2d at 878 (emphasis added). Therefore, the Court illuminated the General Assembly’s intent to protect children against sexual exploitation under Crim. Law § 11-207(a). In the case at bar, S.K. was not being exploited by someone else. She made a video depicting consensual sexual conduct. The General Assembly did not seek to subject minors who recorded themselves in non-exploitative sexual encounters to prosecution, as reflected by the language of Crim. Law § 11-207(a). Rather, the statute contemplates protecting children from the actions of others that bear negatively upon them.

Since this recording was not abusive and was not a depiction of a minor engaged in a sex act with an exploitative adult, there’s no crime here. The sex was consensual as was the recording. And yet, this is only the dissent. Prosecutors in the state are free to punish minors for recording legal, consensual sex acts. Since these recordings only end up in court after someone has shared them with people the recording party didn’t want them shared with, the court is allowing prosecutors to punish teens for the terrible things classmates and acquaintances have done to them.

Filed Under: child porn, maryland, sexting

Virginia Prosecutor 'Reform' Efforts Include Nailing Sexting Teens With Child Porn Charges And Screwing Defense Lawyers

from the you-misspelled-'reactionary' dept

Virginia has a mixed history when it comes to handling teens and sexting. For the most part, these cases have been handled with maximum vindictiveness, resulting in teens being charged with child porn production and possession. In rare cases, prosecutors have exercised more discretion, allowing these experiences to be educational rather than punitive. But default mode is still to use the law like a weapon, rather than a tool, as if justice were somehow achieved by ruining teens’ lives forever for some stupid indiscretions.

A parent’s firsthand experience with this has resulted in him calling out Theo Stamos, Arlington County Commonwealth’s Attorney, for her attempt to portray herself as a reformer in her run for reelection. Jeff Edmeades’ son was railroaded by Stamos for possessing intimate photos of a teen sent to him by fellow students. Exercising her vaunted discretion, Stamos decided to force his son into a plea bargain by hitting him with the harshest charges she could.

As she does in adult cases it seems, she essentially forced a plea deal by threatening to charge him with the maximum possible charges – one felony for possession of child pornography per image. That took defending him in court off the table

The resulting plea agreement was far from ideal. His son was sentenced to supervised probation and does not have the option to have his record expunged after he’s done his time. Edmeades’ letter to the editor points out it’s actions like these that undermine Stamos’ claims that she is fixing a broken justice system from the inside.

In many places, these issues are left to the parents and/or schools to resolve. Notwithstanding this recommendation, Stamos has, on multiple occasions, chosen to prosecute these cases – not because she had to, but rather because she chose to.

Once we were in the juvenile-justice system, which is in theory oriented towards education and rehabilitation rather than punishment, we found that Stamos was very comfortable using the full power of the legal system and the ambiguity around the law in this case to pressure us into accepting a plea deal.

If this is how Ms. Stamos treats children, is it any wonder that she uses the legal system as a blunt-force instrument of punishment with adults? She can say whatever she wants about how her goal is to improve communities and be fair, but her actions speak louder than her words.

It’s not just the opinion of a parent who saw his son treated like a child pornographer for possessing photos of someone roughly his own age. It’s also the state’s defense lawyers, who have witnessed Stamos interpret “discretion” the same way she did in Edmeades’ case: maximum charges brought to ensure a steady flow of plea deals. Their letter says Stamos’ tactics make a mockery of a process that is supposed to recognize defendants’ right to a fair trial.

We are concerned that nearly 98% of felony convictions in Arlington are the result of the defendant pleading guilty, exceeding the rate in all local jurisdictions (Alexandria: 91%; Fairfax/Loudoun: 93%) and even in the federal courts (97%). We are concerned that the low incidence of trials in Arlington is mainly due to overcharging and the fear of harsh consequences if a defendant does not accept a plea bargain.

We are concerned that Arlington convicts defendants of felonies at more than twice the rate of neighboring jurisdictions, despite its very low crime rate. We are worried that this reflects a culture of overcriminalization.

That’s only one of the ways Stamos puts her finger on the scales of justice. The letter also notes she’s hampering defense efforts by making it as difficult as possible to obtain documents via discovery.

We are concerned that the Arlington County Commonwealth’s Attorney’s discovery policy, which prohibits the use of technology to obtain copies of police reports and other documents, places unique and arbitrary restrictions on the discovery process, making it needlessly difficult for defense attorneys to be prepared for trial. We believe that real open file discovery would make the process more fair for defendants and make the criminal process much more reliable and efficient.

Currently, defense lawyers must head to the court during courtroom hours and manually copy files handed over during discovery. Stamos claims this process protects the privacy of crime victims, but it’s difficult to believe details about crime victims are somehow more protected by a process that pretends it’s not actually 2019.

Theo Stamos is the only one who believes these are the practices of a criminal justice system reformer. It starts with screwing teens who made mistakes and ends with screwing their lawyers when they try to mount a defense against these trumped-up charges.

Filed Under: arlington county, plea bargain, prosecutorial discretion, sexting, theo stamos, virginia

from the some-kind-of-progress dept

Techdirt posts about sexting have a depressingly similar story line: young people send explicit photos of themselves to their partners, and one or both of them end up charged with distributing or possessing child pornography. Even more ridiculously, the authorities typically justify branding young people who do this as sex offenders on the grounds that it “protects” the same individuals whose lives they are ruining. Judging by a story in The Local, reporting on a press release that first appeared on the MyNewsDesk site (original in Danish), the police in Denmark seem to be taking a more rational approach. Rather than charging the two young people involved for sexting, they are charging 1,004 people who shared the video and images afterwards, some several hundred times:

The video was primarily sent to and shared between young people, the police said in a major announcement on Monday morning.

Individuals under police suspicion in the case may have broken Danish child pornography laws, police wrote.

The material contains sexual images involving persons under the age of 15 years at the time of recording, the Danish National Police (Rigspolitiet) confirmed in a press statement.

The case came to light after Facebook received reports of sexual video material involving young people under 18 being shared on its Messenger platform last year, and alerted the US authorities as a result. They, in their turn, passed the information on to Europol, the European police agency, who forwarded it to the authorities in Denmark. The Local quotes a Danish police officer pointing out the long-term effects of being convicted of breaking the country’s child pornography laws:

“If you receive a criminal conviction as a minor it can stay on your record for it least ten years. That means you cannot get a job in a daycare or as a football coach. If American authorities are informed, it can also cause difficulties with travelling to the USA. So this is serious and has serious consequences far into the future.”

It could be argued that child pornography laws are not the right way to deal with this kind of sharing by third parties. And it is not clear how the explicit material came to be spread around so widely — to what extent, for example, one or both of the people involved in the sexting started sharing it elsewhere themselves. But it is surely some kind of progress that the police are concentrating on that wider diffusion, which involved hundreds of people, rather than on the initial sexting by two young people, as so many previous cases have done.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: denmark, sexting

Minnesota Prosecutor Hits Teen With Child Porn Charges For Taking Explicit Photos Of Herself

from the 'light-touch'-of-a-prosecutor's-bludgeon dept

Child porn laws continue to be used stupidly by state prosecutors to punish teens for consensual behavior. The ACLU has entered a case on behalf of a 14-year-old who sent explicit photos of herself to another teen. This teen then sent the photos to others. At some point, the state decided to step in. What the teen did was demonstrably stupid, but should it be criminal?

Using the law to set an example and shame some teenagers undermines the seriousness and intent of child pornography laws.

Minnesota statute 617.247 clearly states that its intent is to “protect minors from the physical and psychological damage caused by their being used in pornographic work depicting sexual conduct which involves minors.” Yet it is the state, not Jane that is doing the victimizing.

“I’m not a criminal for taking a selfie,” stated Jane Doe. “Sexting is common among teens at my school, and we shouldn’t face charges for doing it. I don’t want anyone else to go through what I’m going through.”

This is clearly a ridiculous reading of Minnesota’s law. The law can’t “protect” Jane Doe from taking sexually explicit photos of herself — not unless this is the prosecutor’s idea of “protection.” If anyone else had taken the photos, Jane Doe would be the victim of child pornography production.

Even more ridiculously, Jane Doe and the teen she sent the photos to would have been in the clear if they’d limited their interaction to sexual intercourse.

Minnesota statutory rape law is violated when a person has consensual sexual intercourse with an individual under age 16, although it is raised to 18 when the offender is an authority figure. If the younger party is 13-15, their partners must be no more than 2 years older, and children under 13 may only consent to those less than 36 months older.

Although it is possible this prosecutor may have decided to wield this law just as badly.

Because there is no such “Romeo and Juliet law” in Minnesota, it is possible for two individuals both under the age of 16 who willingly engage in intercourse to both be prosecuted for statutory rape, although this is rare.

As the ACLU points out in its brief [PDF], the prosecution of Doe serves no conceivable definition of “justice.” It doesn’t take a child predator off the street and it requires Doe to register as a sex offender even if she pleads to a lesser charge. It robs the term “production” of any meaning by stripping it of context, treating the willing production of explicit material BY a minor as equivalent to the non-consensual production of child pornography by an adult pedophile. The lack of an exploited victim means the prosecutor shouldn’t have a legal basis for the prosecution.

But here we are, watching the state of Minnesota attempt to turn someone who took pictures of herself into a criminal. The National District Attorneys Association has suggested prosecutors limit pursuit of teen sexting cases and to deploy a “light touch” in those they do choose to pursue. But the prosecutor isn’t interested in following the NDAA’s suggestions. As Scott Greenfield points out, leaving sensitive issues like this up to prosecutors rarely works out well for the public.

The problem with relying on prosecutorial discretion to clean up bad laws, to not use the bludgeon in ways that no one really wanted, is that it’s prosecutorial discretion. The prosecutor can choose to use a “light hand,” or come down hard. We might disagree with his choice, but the choice is his, not ours. That’s what discretion means. If the prosecutor, for whatever reason, chooses to beat a teen into submission, he can. If the elements of the crime cover her conduct, then it’s a crime and she’s a criminal. That it’s stupid isn’t the point. This is law.

The law may be stupid but we can apparently always count on some prosecutors to be even stupider. There are a wealth of options available to deter Does from sexting in the future — none of which involve criminal charges or sex offender registration. Parents, family members, schools, community groups… all of these can provide guidance for teens without having to involve law enforcement or a prosecutor’s lack of discretion.

Filed Under: child porn, minnesota, selfies, sexting, teenagers
Companies: aclu

Congress 'Fixes' Child Porn 'Loophole' With 15-Year Prison Sentences For Teen Sexting

from the if-it's-already-broken,-why-not-make-it-worse? dept

Congress agrees (with who, I don’t know): to save our nation’s children from the scourge of sexting, we much incarcerate our nation’s children. As Elizabeth Nolan Brown reports for Reason, the way to ~~salvation~~ sext-free kids runs through our nation’s prison pipelines, where they’ll be rehabilitated through the power of life-crippling criminal sentences and accelerated to adulthood via actual sexual assault at the hands of prisoners/guards.

Teens who text each other explicit images could be subject to 15 years in federal prison under a new bill that just passed the House of Representatives. Rep. Sheila Jackson Lee (D-Texas), ranking member of the House Judiciary Subcommittee on Crime, has called the measure “deadly and counterproductive.”

[…]

Introduced by Rep. Mike Johnson (R-Louisiana) in March, the “Protecting Against Child Exploitation Act of 2017” passed the House by an overwhelming majority last week. Only two Republicans—Reps. Justin Amash of Michigan and Thomas Massie of Kentucky—voted against the bill, along with 53 Democrats.

Yes, you read that right. The bill would add mandatory minimums to child pornography production — even if both participants are minors. Mandatory minimums would also apply to thoughtcrime. Rep. Bobby Scott — one of the few opponents of the bill — was the first to point out that this draconian child porn law would criminalize consensual behavior between teenagers. He also pointed out that the bill seeks to punish “solicitation,” which takes this past actual production of forbidden images into the realm of the hypothetical.

What’s more, “the law explicitly states that the mandatory minimums will apply equally to an attempt or a conspiracy,” Scott noted:

That means if a teenager attempts to obtain a photo of sexually explicit conduct by requesting it from his teenage girlfriend, the judge must sentence that teenager to prison for at least 15 years for making such an attempt. If a teenager goads a friend to ask a teenager to take a sexually explicit image of herself, just by asking, he could be guilty of conspiracy or attempt, and the judge must sentence that teenager to at least 15 years in prison.

As Brown details in her thorough report on the bill, the proposed law is supposed to close a “loophole” that prevented some child porn prosecutions. At least that’s what its supporters are saying. In reality, the loophole isn’t a loophole, but rather a bad decision made by prosecutors.

19-year-old Anthony Palomino-Coronado was accused of molesting his 7-year-old neighbor repeatedly over the course of several months. In investigating the case, police discovered one photo of the abuse that had been taken and subsequently deleted from Palomino-Coronado’s phone.

Combined with the victim’s testimony, the photo should have guaranteed state police little trouble in trying to prosecute Palomino-Coronado for sexual abuse of a child. But federal prosecutors preempted such a prosecution by deciding to instead try Palomino-Coronado in federal court for producing child pornography.

It was a bad call—the case “could have been brought in state court and the defendant would have been subjected to extremely long, lengthy prison time,” Rep. Scott noted during floor debate. But federal law against producing child pornography requires a minor to have been recruited “for the purpose of” producing photo or video. In this case, the court concluded, the long-term pattern of abuse, combined with the fact that only one explicit image was ever taken (and subsequently deleted), meant the perpetrator’s purpose was not producing child porn but, rather, his own sexual gratification. If the feds had simply let the state handle the case as one of sexual abuse, Palomino-Coronado would probably be behind bars right now; instead, they overreached with the child porn charge, and now he’s free.

To try to make amends for this prosecutorial blunder, the DOJ is pushing to have this terrible new law enacted. Not that there’s any lack of supporters for the idea of tossing teens in jail. Sponsor Mike Johnson cited noted legal expert, the apostle Paul.

Johnson, a freshman congressman (and vocal Trump supporter), dismissed opponents’ concern that the measure would be used in ways he didn’t intend it to be used. “In Scripture, Romans 13 refers to the governing authorities as ‘God’s servants, agents of wrath to bring punishment on the wrongdoer,'” he said in response to their floor concerns. “I, for one, believe we have a moral obligation, as any just government should, to defend the defenseless.”

My guess is Johnson’s definition of “defenseless” doesn’t cover sexting teens — not if he’s using Biblical authority to shore up his shaky legal assertions. Other supporters are equally as naive, claiming federal prosecutors won’t use the law to prosecute sexting teens, blithely ignoring the fact that child porn laws have routinely been misused to do exactly that.

This is the road to hell legislators love to travel. And why not? It’s routinely re-paved with good intentions and has lanes wide enough that even the most obtuse legislator can travel comfortably. When it comes to the nation’s youth, nothing’s too good for them. Our nation’s lawmakers are ready to grant them them longer minimum sentences and more ways to avail themselves of one of our nation’s oldest traditions: doing federal time on trumped-up charges. After all, you can’t be for the children unless you’re willing to damn the children. For their own good, of course.

Filed Under: criminal justice, doj, mandatory minimums, punishment, sexting

UK's Health Secretary Has The Solution To Cyberbullying & Sexting: Nerds Should Nerd Harder

from the how-are-these-people-in-power? dept

It appears that the “nerd harder” disease has spread across the Atlantic, and none other than the UK’s Health Secretary, Jeremy Hunt, has caught it. In discussing the (frequently overhyped, but still real) issues of cyberbullying and sexting, Hunt has decided that it’s no problem at all, because the nerds can put their minds to it and magically block it:

?I think social media companies need to step up to the plate and show us how they can be the solution to the issue of mental ill health amongst teenagers, and not the cause of the problem,? he said. ?There is a lot of evidence that the technology industry, if they put their mind to it, can do really smart things.

?For example, I just ask myself the simple question as to why it is that you can?t prevent the texting of sexually explicit images by people under the age of 18, if that?s a lock that parents choose to put on a mobile phone contract. Because there is technology that can identify sexually explicit pictures and prevent it being transmitted.

?I ask myself why we can?t identify cyberbullying when it happens on social media platforms by word pattern recognition, and then prevent it happening. I think there are a lot of things where social media companies could put options in their software that could reduce the risks associated with social media, and I do think that is something which they should actively pursue in a way that hasn?t happened to date.?

And I ask myself, how the hell do modern countries allow people so clueless and ignorant into positions of power? How can it possibly be that someone with this much power and authority can’t understand that context matters and that calling for outright censorship without context would be a disaster? It’s the very epitome of the “nerd harder, nerds” plan that comes up so often. “If they put their minds to it, they can do really smart things.”

It feels like all of these powerful people have internalized the flipside of the famed Arthur C. Clarke quote about how “any sufficiently advanced technology is indistinguishable from magic,” and interpreted it to mean “tech can do magical things.” But as cryptographer Matt Blaze famously noted, ignorant officials saying “surely if we can put a man on the moon we can do this” is like saying “surely if we can put a man on the moon, we can put a man on the sun.” Some things are not doable, no matter how many nerds you throw at it.

You’d think that people in charge of, say, the healthcare of a nation, might at least recognize when they’re too ignorant to understand the difference between the possible but difficult, and the impossible. Apparently not.

Filed Under: censorship, cyberbullying, jeremy hunt, nerd harder, sexting, uk

Stepdad Goes To Police With Stepdaughter's Sexts, Asks Them To Intervene, Is Prosecuted For Child Porn

from the great dept

Sexting continues to be a thing. And, as we have covered various stories revolving around people sending pictures of their naughty bits to one another, much of the consternation in the public tends to be around children partaking in sexting. And I can see their point. While I tend to laugh at prudishness in general, it would probably be best for all involved if underage youngsters weren’t texting each other provocative pictures of themselves with reckless abandon.

So what is a parent to do if their children are found to be doing just that? One might think that going to both the child’s school and authorities to ask for help in stopping this behavior would be in order, right? Well, for one parent in Australia, doing just that landed him a conviction for child pornography and sex offender registration, even as essentially the entire legal system acknowledged that he was just trying to be a good father.

A man who found out that his 15-year-old stepdaughter was sexting her boyfriend proceeded to download the evidence to bring it to the school and the police to ask them to intervene. Oh dear, readers. You know where this is heading. Intervene they did. Now the dad has been convicted on child pornography charges and placed on the sex offender registry. This, despite the judge understanding exactly why the man, Ashan Ortell, 57, held onto the images.

“There is no suggestion of any exploitation of them by anybody,” ruled Judge Jane Patrick, over in Australia, which is becoming as daffy as the United States. “You made no attempt to conceal the images. In fact, you were so concerned that you contacted the authorities about the images.”

And then the judge proceeded to levy the conviction for child pornography upon Ortell. Why? Well, because Ortell made copies of the images he’d found his stepdaughter sending around on a USB stick and brought them to the school and police. The police apparently warned him to delete the images or risk prosecution, before reportedly failing to do much at all to address the behavior about which Ortell was concerned. Because of that, he kept the images, ostensibly so that he could address the behavior with other parties that might help him intervene. And that’s when he was prosecuted for child pornography.

Let’s be clear here: everyone agrees that Ortell did not keep the images for lewd reasons. There is a complete consensus, up to and including the judge who convicted him, that Ortell is merely a concerned parent attempting to do the right thing. Yet here we are. Legal systems routinely take intention into account with regards to charges, prosecutions, and rulings. Yet that failed to happen here, because context and nuance go right out the window when it comes to certain topics that have been overhyped in the public discourse as some kind of impending doomsday. Sexting amongst children is one of those topics.

Need more proof? The local police department has reached out to parents as a result of this whole fiasco with advice that wouldn’t have helped in this case.

The ridiculous advice the Victoria police are giving to parents in the wake of this case is: Talk to your children about sexting “and encourage them not to communicate with people they don’t know.”

Well, okay. How would that have helped? The girl was definitely communicating with someone she did know: her boyfriend. I’m also guessing that talking to your kids about sexting is like talking to them about abstinence. A few may pay heed, but many won’t.

The fact that sexualized pictures of “children” (anyone under 18 qualifies in federal child porn statues) are rampant and often consensual should somehow be reflected in the laws. Instead, low-level sex offenses are becoming the low-level drug offenses of this century: Something we overreact to in a charade of concern and, in the process, turn decent people into criminals.

Child pornography is not an issue to be taken lightly, to be sure, but making a mockery of the public’s concern by convicting a well-meaning parent isn’t the answer to anything at all.

Filed Under: arrests, australia, child porn, police, sexting

New Mexico Attorney General Would Rather See Sexting Teens Treated As Sex Offenders Than See His Funding 'Jeopardized'

from the christ,-what-an-asshole dept

Teens sexting can’t be addressed by existing laws. Law enforcement — which far too often chooses to involve itself in matters best left to parents — bends child pornography laws to “fit” the crime. They often state they’re only doing this to save kids from the harm that might result by further distribution of explicit photos. How exactly turning a teen into a child pornographer who must add his or herself to the sex offender registries is less harmful than the imagined outcomes cited by law enforcement is never explained.

Over in New Mexico, legislators are making an honest attempt to keep sexting teens from being treated like sex offenders. And it’s law enforcement that’s leading the opposition to the proposed changes. The bill would continue to uphold harsh penalties for actual child pornographers while decriminalizing sexting between teens.

The New Mexico Attorney General is having none of it, as Reason’s Robby Soave reports:

“I cannot support an amendment that weakens protections for teenagers from predatory activity, creates a dangerous new child exploitation loophole, and places New Mexico’s federal Internet Crimes Against Children Task Force funding in jeopardy,” said Attorney General Hector Balderas in a statement, according to the Alamogordo Daily News.

This statement is not only ridiculous, but it shows the AG is more interested in budget lines than the future of teens who do the sort of things teens are inevitably going to do. Balderas is explicitly stating that he’s willing to sacrifice young lives in order to secure his task force’s funding. That’s just sickening. In Balderas’ world, sexting teens are nothing more than a revenue stream.

As Soave points out, the legislation still contains harsh punishments for child pornographers and does nothing to create a “loophole” for accused offenders. What it would do is keep teens from being charged for exchanging explicit photos with their peers by carving out an exception for photos exchanged by teens ages 14-17.

There’s nothing logical about applying sexual predator/child pornography laws in this way. But Balderas has helpfully explained why many law enforcement officials are more than happy to do exactly that. There’s good money in chasing down child pornographers — a criminal act reviled by a majority of their constituents. Anything that might jeopardize these funds — like treating sexting teens as a disciplinary/educational problem rather than a criminal one — is to be rejected out of hand.

Soave notes Balderas was so incensed by this threat to his funding that he and his staff walked out of the hearing in a show of outrageously stupid, callously self-centered solidarity. Balderas may want to play hardball with child pornographers, but he’s also shown he’s more than willing to fuck a few kids himself when there’s money on the line.

Filed Under: funding, hector balderas, law enforcement, new mexico, sex offenders, sexting

Another Cop Treats Sexting Teens Like Child Pornographers

from the teen-would-have-been-better-off-engaging-in-sexual-activity dept

More sexting stupidity, this time in Michigan.

A Three Rivers, Michigan, teenager is both the victim and perpetrator of a sex crime. He might land on the sex offender registry, and face criminal charges, all because he took an inappropriate photo—of himself.

The boy is unnamed in local news reporters, which note that he is under 15 years of age. He allegedly took a nude photo of himself on a girl’s cell phone. That girl sent the picture to another girl, who sent it to another. Preliminary charges are pending for all three—the boy was charged with manufacturing child porn, and the girls with distributing it. A prosecutor is still weighing whether to pursue the charges.

Hopefully, the prosecutor will realize that pursuing the suggested charges could ruin a few teens’ lives. The police detective working the case seems to want to destroy these kids’ lives… for the good of other teens, or something.

Police Detective Mike Mohney told WBST.com that sexting is a serious crime because it leads to “bullying,” and “real severe things like people committing suicide or violent crimes against others because they’re so embarrassed about it.”

As Reason’s Robby Soave points out, Detective Mohney is a walking contradiction. Apparently, it’s never occurred to him that bringing child porn charges against these young teens might result in bullying and suicide. Nothing makes the future look dim and hopeless like a long stint on the sex offender registry. Nothing destroys someone’s reputation faster than being listed alongside criminals who manufactured actual child porn, rather than just took a photo of their own adolescent body.

For that matter, the preliminary charges make this teen’s decision to photograph his own body and send it to another teen a far worse crime than if he’d simply showed up at the girl’s house, stripped off his clothes and proceeded to engage in sexual activity with her.

Taking off his clothes at her house would have been nothing more than indecent exposure, a misdemeanor. More importantly, unless the person has been convicted for other sexual-related crimes, there’s no sex offender registration tied to the charge.

Even if he’d pursued sexual contact with the other teen, it still would have been a better outcome than being branded a child pornographer. Michigan has no “Romeo and Juliet” law, so any contact between teens — no matter their closeness in age — could trigger statutory rape charges. (Obviously, if the sexual activity was not consensual, this would be actual rape, but there’s no reason to believe a [possibly] unsolicited naked photo rises to the level of aggravated sexual assault.)

If the activity was consensual, the worst charge would be statutory rape, which does not require sex offender registration for teens.

[P]eople who are convicted of criminal sexual conduct based on consensual sexual conduct with children over the age of 13 who are not more than four years older than their victims are not required to register.

And, if the sexual contact contained no penetration, no criminal charges would be brought at all.

[A] 17-year-old who engages in consensual petting with a 14-year-old could not be prosecuted for a crime. However, if the parties engaged in oral sex, the 17-year-old could face prosecution.

So, this so-very-concerned detective has taken a digital photo — taken by a teen of his own body — and turned it into something worse than actual in-person nudity and/or sexual contact. That’s a pretty fucked up way to show concern for sexting teens. Treating photos taken by minors and distributed to other minors as child porn is the worst possible way to handle a situation that, in all reality, should be left to the discretion of the teens’ parents.

Filed Under: child porn, michigan, mike mohney, police, sexting, teens, three rivers