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21 September 2015

Teens are earning police records for taking naked photos of themselves

Our laws on child pornography don’t allow for the rise of the internet, let alone smartphones, and they’re already woefully out-of-date.

By Barbara Speed

Let’s start with a legal puzzle. In a small town in North Carolina, at some point over the past year or so, a teenaged couple took naked photos of themselves on one of their phones. In February, the couple, by then 16, were arrested and charged. What was their crime?

In order to figure it out, you’d need to know a few things about the US legal system and its child pornography laws. First, in North Carolina, teenagers can be charged as adults at the age of 16, yet must be 18 to legally disseminate or receive sexual material. Thus, as the Washington Post noted with an air of bafflement earlier today, the couple were arrested “for sexually exploiting… themselves”.

The case mirrors another which played out on this side of the pond earlier this year. A 14-year-old boy took a nude selfie and sent it to a female classmate, who promptly sent it around the school. What should have been just a bit of hurtful bullying spiralled out of control when the school found out what had happened and informed the police – who put the incident on the boy’s record, meaning he would need to disclose the offence to employers for the next decade.

Both cases spring from the fact that in the UK and in most US states, our child pornography laws were developed in an age before smartphones. Ethnographer danah boyd, who studies teenagers and their use of technology, delivered a talk in 2011 on the subject of sexting, which lays why teen sexting keeps colliding with the law in uncomfortable ways.

Child pornography laws, she explains, are intentionally strong and unbending, because they relate one of the worst crimes around: the rape and molestation of children. Yet, as she notes:

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“The legal efforts to combat child pornography did not predict two things:

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– The emergence of Web2.0 and user-generated content

– Teenage sexting for fun.”

Boyd’s second point is pretty self-explanatory. The first relates to the fact that laws created before the rise of social media assume that websites have some level of control over the images that appear on them, and therefore the sites should be liable for pornographic images of minors which appear. Yet, as we know, most sites are now repositories for billions of chunks of user content which would be impossible to exhaustively filter and check. This means that not only teens, but the websites that host their nude selfies, could be charged with hosting and/or disseminating child pornography.

Legal scholars have come out in their droves to criticise the North Carolina ruling. Professor Mary Anne Franks at the University of Miami, told the Washington Post:

“Sexual activity that does not even involve another person — such as taking a sexually explicit photo of yourself — should not ever be a crime. In fact, criminalizing such expression likely violates the First Amendment. Child sexual exploitation laws were clearly designed to address the exploitation of children by adults, not teenagers exploring their sexuality on their own or with a willing peer.”

And as my colleague Helen Lewis pointed out in the Guardian earlier this month, the case of the 14-year-old boy in the UK may well have played out very differently if the genders were reversed. If the picture were of a girl, we’d be much quicker to identify what happened as a form of revenge porn at worst, or a mean-spirited shaming at worst. To punish a teenager for sending an apparently consensual naked photo to a young woman who then distributed it among classmates seems draconian, especially as she faced no such punishment.

So who’s at fault here? In cases like these, commentators and public opinion are always quick to leap on technology, and our laissez-faire approach to young peoples’ use of it, as the root of all social ills. Yet teens are presumably no more sex-obsessed than they were 30 years ago, when they swapped magazines and Polaroids instead of smartphone snaps. Then, as now, we should accept that while we may feel a little uncomfortable about underage teenagers looking at and creating sexual material, this kind of exploration is inevitable, and, usually, not harmful.

At heart, our fears about teens, smartphones and sexting shouldn’t surround the fact that kids are swapping photos – it’s that those photos are permanently etched onto hard drives and browser histories, and can be shared an infinite number of times. The (in my opinion, at least) misuse of child pornography legislation in these cases demonstrates that young people could now be branded sex offenders for indulging an instinct that’s about as old as the urge to stand on two legs.

As such, protecting young people shouldn’t be about blaming them – especially as today’s young people are, by most accounts, the most sensible generation since records began – but about improving our legal and privacy frameworks to protect them from the unwanted side effects of selfies and sexts. Child pornography laws should be updated to acknowledge the existence of smartphones; while better sex, cyber privacy and consent education could help us battle back against photo-based bullying.