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Is That "Sexting" Pic Illegal? A Scientific Test
from the i-like-the-testing-part dept.
A county district attorney in Pennsylvania has threatened to file felony child pornography charges against three teenage girls for pictures that they took of themselves, even though the girls' lawyers say the pictures are clearly not sexually explicit and do not meet the legal definition of child porn. The American Civil Liberties Union has countered by asking a federal judge to block District Attorney George Skumanick from filing charges.
Skumanick won't show the pictures to anyone, including the girls' lawyers, but according to the reported descriptions, one picture shows two of the girls flashing the peace sign in their bras, and the other picture shows a girl wrapped in a towel with her breasts exposed after stepping out of the shower. Unless there's something very significant being deliberately left out of those descriptions, it sounds pretty obvious that the pictures do not meet the definition of child pornography, which requires sexual explicitness, not just nudity.
Skumanick may even sound like a buffoon for threatening to prosecute the girls over those pictures, but his overreaching is probably an example of the "context syndrome" that I referred to in writing about a Wikipedia article about a CD showing a naked underage girl on the cover. In that article, I wrote:
Suppose you read a news article about a man who was arrested for possession of child pornography, and you happened to see a sample of the images (never mind how) that he was arrested for. And suppose the Virgin Killer album cover photo had been mixed in with those images. Would it have jumped out at you as an obvious case of over-reaching by the police?
In other words, even an obviously legal photo might seem illegal when it's mixed in with a group of photos that constitute actual child porn. According to the AP, Skumanick's office first found the photos in question after confiscating students' cell phones and rounding up 20 students accused of making or distributing the images found on the phones. Some of those other photos were presumably racy enough to meet the definition of child pornography, and Skumanick probably just lumped in the bra and towel pictures into that category without thinking too much about it. Giving him credit, if someone had come to his office and shown him the picture of the towel girl by itself and asked him to prosecute the girl for creating child pornography, he might have said that it didn't meet the legal definition.
But the "context syndrome" only excuses the initial mistake, and only partly. By now, he's had time to think about those particular pictures, and he knows that non-sexually-explicit photos do not constitute child pornography, so what is he doing? He claims that the girls in their bras were posed "provocatively", but that's not the same as sexual explicitness, and he hasn't even made that claim about the towel picture, so unless there's some bombshell piece of information about the photos that he's still keeping secret (and why would he?), there's no excuse for him not to drop the threats of prosecution right away.
But could even the initial mistake have been avoided? I think it could have, if you designed a scientific procedure for deciding, objectively, whether an image meets the legal definition of "child pornography", by borrowing some of the principles used in police lineups.
Now, obviously one big difference between deciding if the right suspect has been identified in a lineup, and deciding whether an image constitutes child pornography, is that the question of a suspect's identity in a lineup is a question about objective reality, while the question of whether an image is "child pornography" is a matter of opinion and consensus about an imprecisely defined English phrase, so it may sound odd to try and find a "scientifically objective" answer. But by "objective", I mean that the procedure should eliminate the influence of factors that are not relevant to the legal definition of child pornography (for example, if asking someone to decide if they think a picture meets the definition, don't tell them whether the photo was found in a pedophile's basement or in a parent's photo album, because under the strict legal definition, that shouldn't matter). And by "scientific", I mean that the Yes/No answers returned by the procedure should be repeatable as far as possible, so that different defendants aren't being tried under wildly different standards, where Bob is convicted of possessing an innocuous photo while Alice is acquitted even though she possessed a racier one.
A naive solution, from a scientific point of view, would be to poll a random sample of lawyers or other professionals in a police go-to database, and ask them to evaluate whether the picture is child pornography, without any information about where the picture came from. These results would be objective (if the respondents didn't know the source of the picture), and would generally be repeatable, if the sample size is large enough. The problem with this method is that while all defendants would be held to the same standard, all citizens would not be. Suppose the lawyers in the go-to list start to decide, as many of them probably would, that anybody who is being prosecuted for possessing a picture of a topless underage girl is probably a pedophile creep anyway, and would start voting "child pornography" for all but the most obviously legal pictures. The prosecutor would realize this, and would know that they could threaten to ruin people's lives by charging them with possession of child pornography because of pictures found in their possession -- even while other members of society possessed similar pictures without ever being charged.
Here's where the analogy to a police lineup comes in. Police lineups are supposed to include "known innocent" candidates in order to test the credibility of the eyewitness; if the eyewitness selects a candidate who could not have possibly committed the crime (because, for example, they were in jail), then the police know the eyewitness is not reliable. (This was one guideline notoriously violated by District Attorney Mike Nifong in the Duke lacrosse team rape trial; he assembled a lineup consisting only of lacrosse team members from the party, so that whomever the eyewitness identified was guaranteed to fall under a cloud of suspicion.) In the same vein, the lawyers or other experts being consulted by the police could be shown a "lineup" of photos, consisting of several photos that were determined in advance to be legal (either because of a prior court ruling, or perhaps just because the D.A. had declined to prosecute the photos on previous occasions), along with the photo whose legality was in question. Ask the experts to pick which photo they think is closest to the definition of child pornography. Unless most of them pick the photo that's on trial, then that photo can't be said to be worse than any of the other photos that had already been deemed legal.
This is closer to a fair solution, but there's still a big loophole. When police assemble candidates for a lineup, they are supposed to pick candidates who match the general physical description given by the eyewitness. If the eyewitness said they were attacked by a redhead, the police can't fill out the lineup with one redheaded suspect that they want to railroad, and 10 blondes. Because attributes like "Caucasian" and "redhead" are pretty straightforward, if the rules for lineups are being enforced properly, the police don't have a lot of wiggle room to fill out the lineup with candidates who blatantly don't match the description. Unfortunately, it would be a lot easier to cheat when creating a "lineup" of photos to compare against a photo whose owner was on trial for possessing child pornography. If the photo at issue is probably legal but still provocative, then the police could fill out the rest of the lineup with completely non-sexual but perhaps eyebrow-raising photos, like a naked teenage girl watering some houseplants. Then when the police ask, "Which of these does not belong?", everybody would pick the provocative one, and the police would take that as "vindication".
The only way I can think of to guard against this, would be to let the defense counsel pick the other photos in the lineup, and then they could pick the most "provocative" ones that were still legal! For any photos that have been declared legal in the past, the defense ought to be able to argue that if an independent panel of experts doesn't think their client's pictures are any worse than those, then their client should not be prosecuted either. (If the defense lawyer decided their client was a child molester and wanted to throw them to the wolves, they could deliberately pick non-sexual photos for the lineup, so that their client's photo gets pegged as the odd one out -- but when the defense lawyer decides to railroad their own client, it's almost impossible for the system to guard against that anyway. Also, it's probably not a good idea to make this an option for child pornography defendants who decide to represent themselves, so that they can rifle through thousands of photographs of naked children, even legal ones, to find the pictures that they think are the "sexiest" to use for their defense.)
Perhaps someone can think of a better method that is still roughly scientific, in the sense of trying everyone according to the same standard and giving repeatable results. The irony is that despite the potential of child pornography charges to destroy a person's life, it is in possible in principle to try child pornography cases more objectively than almost any other type of crime, because you can separate out the alleged criminal act from everything else about the defendant, and let people examine the evidence of criminality in isolation. If someone shoots a person and claims it was self-defense, it's hard to imagine how you could distill out only the relevant facts of the case, and pass along just those facts to some third-party observer who then renders a judgment without knowing anything else. Half the courtroom battle is over what facts are "relevant" in the first place. But in the case of a child pornography charge, you can give the photo -- and no other information -- to an expert, and ask them to make a judgment.
I know, I know. The police and prosecutors are not actually doing to do this. But that in itself says something. Even if it's not possible to try most crimes in a truly objective fashion, why don't the courts and the police do this when it is possible? Many first-year psychology students that have an intuitive grasp of the principles of sound double-blind testing, could probably come up with a procedure better than the one I've described. When you've spent long enough thinking about how to design experiments objectively, you can't even hear about lawyers arguing over whether a photo constitutes child pornography, without the thought popping into your head: "Have a group of experts look at the photo and rate it, independently of each other. Compare the results to a 'control' result where the experts look at a photo that is not child pornography." And so on. Why don't those suggestions ever come from within the legal profession itself?
And on the flip side, what about using scientific methods to examine facts about the legal system? When considering that judges are tasked with evaluating parties' claims in an objective and fair manner, one could ask: Are they really being objective? What are different ways that we could test this? Perhaps by having two actors in different courtrooms on the same day, charged with exactly the same crime under the same circumstances, except one is black and the other is white, and repeat the experiment many times to see if they receive different average sentences. For a scientist, the idea is the most natural thing in the world. Forget the fact that the legal system doesn't do this -- why is virtually nobody in the legal profession even suggesting it?
Probably because most people who think in terms of objective experimental design are drawn towards the hard sciences, not toward law. That's probably a good thing; such people can likely do more good as physicists and research psychologists than they could as lawyers and policemen. But they can still speak out for the principles of science to be applied wherever possible, in any area where objectivity is important -- especially the law.
All true scientists at heart should keep telling the world that "science" is not just a label that encompasses nerd subjects like biology, physics, and chemistry, with other subjects like art and law being "outside the domain of science". While the statements made within the framework of those subjects are not scientific ("This painting is pretty", "The court finds the defendant not liable", etc.), science can make statements about the people in those professions and the patterns in the conclusions that they reach. If art experts are evaluating paintings differently depending on whether they think the paintings come from an art gallery or a 4-year-old's kitchen table, you could find that out through a scientific experiment. If judges are giving an easier time to lawyers than they are to parties who represent themselves, even when they make exactly identical arguments, you could test that hypothesis with an experiment, too. And scientific principles could be used to draw up procedures for trying cases more objectively, as in the procedure for deciding the legality of sexting photographs. We just need to get over the idea that "scientists" should limit themselves to the forensic CSI stuff and then stay away from the legal arena because that's a "separate domain". Science could tell us quite a lot about how fairly justice is dispensed in the courtroom, and sometimes even how to fix the problems.
nice... (Score:5, Insightful)
Skumanick won't show the pictures to anyone, including the girls' lawyers
hard to prove your innocence if you're not given the chance to.
Re:nice... (Score:5, Funny)
Everyone knows that sex offenders float when hog tied and thrown in water. How much more scientific do you need?
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Re:nice... (Score:5, Informative)
it's shame this got a troll mod. Rather amusing to me, and a tongue-in-cheek reminder at how quickly history is forgotten.
http://en.wikipedia.org/wiki/Salem_Witch_Trials [wikipedia.org]
Off wit 'es hed.
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Re:nice... (Score:5, Insightful)
Yep - more child sex hysteria [blogspot.com]. Those poor kids - our legal system makes me sick. I can't imagine how many people in my generation would be behind bars now for the harmless things we did as adolescents were it not for the absence of this insanity back then.
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Re:nice... (Score:5, Insightful)
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Re:nice... (Score:5, Insightful)
Mental note: When Lupis42 invites you over for "game night", politely say no, and block his calls.
And as for the pictures in question, I'm not surprised they haven't been released. One charge for the girl is bad enough, if the parents start distributing the pictures, they'd be in for a world of pain. I'm afraid to think of all the charges, but at least some start with 18 U.S.C. 2257. I'm sure there would be many more state and local charges.
The picture as described, with a girl naked, except for a towel around her waist, can easily be construed as pornography.
Then again, would any photo shot at a topless beach or nudist colony be pornography? Not really. I'm sure there can be some that are, but not the general snapshot of someone standing there.
We are a repressed society. Some Americans have open minds about themselves and the form that we live in. Some are offended by people going to the beach in (oh my gosh) bikinis. An amazing number are offended by nudist camps, even those that are adult only. Little do those who are so upset about this know, but even I am naked everyday between the time I step into the shower, and the time I get out of it. I hope they are too, but I'd prefer not to think about most people naked. (oohh, the mental images, I've gone mentally blind!)
So kids are doing stupid things. You know what, their PARENTS should be parenting. Just because you can give a 10 year old kid a cell phone to call home on doesn't mean that you should. Great, you've given them one with a camera and the ability to send text messages. Back in the day, these were more discrete events, where we actually had to sneak away together, and there was no evidence. :)
[flashing back to high school] ... ...
ya, we've all been doing things that we shouldn't have, but it's because we circumvented parental controls. Giving such a blatant way to circumvent the parental controls is stupid.
I like that kids can have cell phones. They can call home in an emergency. "Mom, my friend is drunk, I don't want to ride home with her." is the best call you can hope for that night. Go, pick up the kids, and collect the car in the morning. It's much better than the knock on the door from law enforcement.
I'm not going to try to tell people how to parent, and neither should the law, but the "sexting" thing is something that should be within the parents ability to control. Prosecuting a child for the law that's suppose to protect the child from older predators is stupid.
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Not stupid. It's child abuse (Score:5, Interesting)
Stupid? Why not call it child abuse?
Go show me how it isn't, or would damage the child less than the least of legally recognized forms of child abuse.
I sure wouldn't want any child to be "molested" by the "Justice System".
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Re:nice... (Score:5, Funny)
So, they're made of wood, like witches?
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Re:nice... (Score:5, Insightful)
This is yet another comment that I wish could be modded beyond a 5. Good job for such a witty comment on how this has turned into a witch hunt. And if I may contribute to this discussion with an argument that has been proposed before yet not enough know about it: go after people who have actually committed child abuse or sexual offenses. Who cares if some pedophile has child porn? If anyone goes to a hentai site, they may actually have an idea of the amount of people jerking it to loli. Hell, the Barely legal magazines and similar sites are a clear reminder of how many men are attracted to underdeveloped women. The law is not here to persecute people who are likely to commit a true crime, it's here to persecute those who have. If we continue to press charges like these, we may as well start rounding up those who go through too much violent media (sound familiar?).
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Re:nice... (Score:5, Insightful)
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Re:nice... (Score:5, Insightful)
That justification -- while exactly the reason the genuine article should be illegal -- doesn't address the illegalization of virtual or simulated child porn, or cases like this (where if any abuse occurred it was self-abuse with no third party involved in the creation).
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Re:nice... (Score:5, Insightful)
So by that logic all people who play violent video games must automatically think that its ok to kill people in real life because we do in the game?
99.9% of people who play these games know they shouldn't kill other people and etc, but do so in the game because there are no consequences. Should we take away all violent video games just because of a 0.1% that might go on a school shooting spree?
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Re:nice... (Score:5, Insightful)
By your reasoning, ABC's Dancing with the Stars should be immediately yanked off-the-air, because some guy was gratifying himself while watching an underage seventeen-year-old gymnast dance.
QED your reasoning is flawed.
You punish the man who commits the crime, not the underage artists who are innocently dancing on television, or strolling across a nudist beach. You don't censor videos or images. You don't punish the victim. You punish the criminal/stalker.
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Re:nice... (Score:5, Insightful)
Why on earth should titillating the person who looks at an image make it illegal? Isn't the whole reason (excuse) for making some images illegal that a crime was committed in MAKING it -- performing a sex act on a child -- whether anyone sees the image at all is really irrelevant to that, except as it serves as evidence of the act. Why is it not illegal to look at images of crime scenes, death, murder? You see these in newspapers....
It's just an easy score to catch some loser with a big porn collection, and does NOTHING to protect children (or actually does them harm, as in this case).
And I was fairly amused at the article's suggestion of making panels of lawyers to look and rate the degree of kiddie porn a given image has. Why are lawyers immune to the evil effects of looking at these images? Why does anyone else run the risk of becoming a depraved sex fiend?
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Re:nice... (Score:5, Insightful)
>>>The actual harm is that child porn happened. It abused one or more children to have been recorded for subsequent whatever.
Yes, no, and no.
- Yes if a sex act was performed then a crime has been committed (underage sex/statutory rape)
- No if the picture is just simple nudity, like from a family resort or beach or bathroom, then no crime has been committed. Nudity is not abuse or criminal.
- No if the picture is just a drawing of sex (think Japanese anime), then no crime has been committed, because there is no victim. Simple as that.
THINK people.
And stop being afraid
of the human body.
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Re:nice... (Score:5, Insightful)
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Re:nice... (Score:5, Funny)
That's an excellent point. So often, the good questions are simple: How can you be tried as an adult for having "child porn" of yourself?
Maybe the law has finally found quantum physics. You know, Schrödinger's Defendant - she's both adult and a kid at the same time, at least until a judge looks. :-)
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Re:nice... (Score:5, Funny)
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That's Not Why Child Porn is Illegal (Score:5, Insightful)
Don't forget that they will very likely be tried as adults because they were fully capable of understanding the nature and consequences of their actions for something that is only illegal because they are NOT capable of doing exactly that.
That's not why child porn is illegal. It can't be.
Consider: I'm (significantly) over 18 years of age, so the law assumes I understand the consequences of my actions. That includes knowing the consequences of distributing pornographic images of myself, which I have the legal right to do.
Hypothetically, let's say that before I turned 18 and instantly became aware of the consequences of my actions, I took some photographs of myself masturbating, but never distributed them. It would be patently illegal for me to distribute (or even possess them) them now, despite my being well over the age of majority, because it would be child pornography.
If the child porn laws were merely about protecting those who don't understand the consequences of their actions, it would be legal for me to distribute those photos at the present time, because I am deemed (at present), to understand the consequences of my actions, and am in no need of such protection.
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Re:That's Not Why Child Porn is Illegal (Score:5, Insightful)
Your conclusion is invalid because you falsely assume that the law will necessarily be written in a way compliant with what those who passed it attempted to accomplish.
The fact is that most laws are written very sloppily, and can easily be twisted around just the way this one is.
For an easy example: look at the kid in Georgia a few years back who got 10 years (since overturned by a change in legislation) for receiving oral sex from a girl a couple of years younger.
They made an exception ("Romeo and Juliet" clause) for sex between an adult and minor where the age difference is small, but simply failed to use sufficiently inclusive language (making intercourse a non-felony, but not oral sex).
As pointed out, the child-porn laws are unreasonable and getting worse. The thought that you can be prosecuted for possession of a picture of yourself is just one example. We *must* protect children (and I would argue a 16-year-old, while a minor, isn't a child; so there should be a difference as there is between "child molestation" and "statutory rape"), but we shouldn't do it by punishing the innocent... innocent at least of this.
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Re:nice... (Score:5, Insightful)
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Re:nice... (Score:5, Informative)
I was going to ask you for a reference to this story but thought I'd give Google a try first:
A short summary: http://www.boingboing.net/2007/02/20/teen-couple-who-phot.html [boingboing.net]
The summary also contains a link to a more authoritive source: http://news.com.com/Police+blotter+Teens+prosecuted+for+racy+photos/2100-1030_3-6157857.html [com.com]
And a link to the legal opinion, to see for yourself: http://politechbot.com/docs/child.porn.laws.apply.to.minors.020807.html [politechbot.com]
I'm amazed this actually seems to be a TRUE story. Not even the Mythbusters could have proven that myth, yet it's true!
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Screwy laws... (Score:5, Interesting)
IN some states, the age of consent and child porn statutes have the same age limits.
For instance, a quick read of NV law shows the AOC to be 16. Child porn is defined as sexually explicit blah blah blah involving a person under 16. Federal law makes it a crime with a person under 18, but there may be some state line/interstate commerce nexus that needs to be fulfilled.
I didn't feel like looking at too many states, but found this same AOC/CP thing with NH-16/16.
Many states forbid distributing/exhibiting obscenity to people under 18, regardless of their AOC/CP statutes.
SO, excluding the feds, it's not a crime to have sex with a 16 year old or film it. But, she can't watch the tape afterward. It's a crime to allow her 16 year old friend to watch the act as it occurs, but not a crime to have her join. Neither of them can smoke a cigarette or have a beer afterward. If either one were to rob,beat,kill one of their fellow participants, they would be tried as an adult in every state in the country.
- Stolen from a Fark thread.
-----
How old do you think your great-great-great grandparents were when the got it on?
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Re:Screwy laws... (Score:5, Insightful)
If either one were to rob,beat,kill one of their fellow participants, they would be tried as an adult in every state in the country.
Which is what I find (darkly) humourous in so many cases. We had a case a few months ago where an 8 year old boy shot and killed his brother (intentionally). Very sad event for the family naturally, but then the county sheriff was on the news, and actually said that they were going to attempt to try the boy as an adult if they could.
Now, the crime aside, if an EIGHT year old is tried as an adult, does the distinction even serve a purpose anymore? What the age is, I don't know (I'm going to say 16 sounds nice personally), but I think that the transition age from child to adult should be FIRMLY and legally defined, and at that specific age all of the following become true:
- you can legally have sex with any individual
- you can legally participate in pornography
- you can legally drive a car
- you can legally have a beer
- you can legally use tobacco
- you can be legally drafted
- you can be legally tried as an adult
- and to hell with it, you can legally be president (the 35 thing is odd for me - I doubt anyone younger than this would make it anyways, but it's a stupid law IMHO).
Again, there's room for debate on what that age should be (16 sounds good for me, but I could live with raising it to 18), but whatever the number, I think that all of the above events should occur at the same milestone.
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Re:Screwy laws... (Score:5, Informative)
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Re:nice... (Score:5, Insightful)
Skumanick won't show the pictures to anyone, including the girls' lawyers
hard to prove your innocence if you're not given the chance to.
This isn't a trial and nobody needs to prove anything at this stage, since no one has been charged with a crime. If he charged them, and if it went to trial, the pictures would be evidence that the girl's attorneys would be entitled to see at discovery. Just don't get too far ahead of yourself.
Now, whether or not it's ethical for a prosecutor to threaten prosecution like this is a longstanding debate in legal academia. He has every right to bring them to court an attempt to prove to the jury that they have violated the law -- that's what prosecutors do, they bring charges to court and attempt to prove them. Also in their power is the option of making a plea deal with the defendants -- which is what happened here -- he didn't want a trial so he made them an offer for some probation. They refused, now the DA has to put up or shutup (there's also this preemptive Federal lawsuit, which I think is destined to fail).
Of course, the real motivation here ought to be for the legislature to amend the law to define child pornography in a more sensible way but they have a good track record of messing these things up, so I'm not holding my breath. Oh, and if you live in that county, you could vote for a DA with better priorities. Maybe. I don't know who the other candidates are/were.
Finally, a word of advice to the kiddies: the law might be stupid, but you should probably follow it. To the letter. Many on /. will probably revile the idea that we ought to follow such stupid laws, but you have to chose your battles (something the DA ought to learn) and this one just doesn't seem worth taking a stand for.
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Re:nice... (Score:5, Insightful)
You can't follow the law sufficiently to avoid being charged with something. Police can and will find a reason to charge you with something if they really want to. There are quite a few laws on the books that exist only to make these things easier for actually charging someone while they try to get other, more serious charges added to the list.
The only thing you can do is hope to never end up on the wrong end of a police officer or DA's campaign against something. Some day being a goody-two-shoes might get you on the wrong end of an officer's personality and get you charged with something benign just to make him giggle.
There are no legal guarantees. Retain a lawyer.
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Re:nice... (Score:5, Insightful)
I know. We should move back to a system where the accused do not have to prove their innocence, but the accusers have to prove guilt.
This is called denial of exculpatory evidence, and is solid grounds for a complete case dismissal. So why would the DA do such a thing? He's probably afraid an independent lab will find DA DNA.
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Re:nice... (Score:5, Insightful)
Legally. These girls are also being tried in the court of public opinion.
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Re:nice... (Score:5, Insightful)
It is good to see someone who realizes that.
Considering how much publicity this is getting, how many news reports, talk shows etc are commenting and discussing it, is anyone here naive enough to believe that, if it ever comes to trial, the sentence won't be set before they even step into the courtroom ?
What is happening right now IS the trial.
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Re:nice... (Score:5, Insightful)
Actually, here in America, you don't have to "prove your innocence." You're presumed innocent, and it's up to the prosecution to prove you guilty.
Not always. Just ask Richard Jewell. [wikipedia.org]
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Re:nice... (Score:5, Insightful)
Actually, here in America, you don't have to "prove your innocence." You're presumed innocent, and it's up to the prosecution to prove you guilty.
You must be old here.
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Re:Yes, but... (Score:5, Insightful)
Once the charges are made, the prosecution will be required to furnish the photographs. As it is right now, they may be required not to do so under dissemination laws. This isn't terribly sinister, perhaps simply a stupid law.
As it is right now, this is plain and simply blackmail. "You have committed a crime, I'm not sure exactly which one, but if you don't do as I say, I will prosecute you. By the way, I'm not going to show you the evidence, either." I'm not surprised people caved. But what they should have done was banded together...
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How it actually works... (Score:5, Funny)
wtf is sexting? (Score:5, Informative)
a summary that long dedicated to whatever the fuck it is and no actual definition. [wikipedia.org]
at first I thought it might be a "sex sting". turns out it is sending pics of your "naughty bits" via camera phone.
Unreasonable on its face (Score:5, Insightful)
The DA is threatening to file felony charges against three girls for taking pictures of themselves. There's no wiggle room; the guy IS an unreasonable buffoon, and excuses like "context syndrome" don't help.
Interesting idea (Score:5, Insightful)
It is an interesting idea, and it might even work in theory, but I doubt it will ever be widely used. Why? Because you'll have a hard time convincing people to send possible child pornography off to be examined by a bunch of anonymous experts.
In the case of "sexting," where oftentimes the defendant and the victim are the same person, maybe it would pass. But if Joe Blow is charged with distributing dirty pics of Jenny Junior, I doubt Jenny's parents will be okay with those pictures being shown to even more people. There's no incentive for them to compromise, since people are routinely convicted on child pornography charges without this process.
This whole thing would probably have to be legislated anyway. How many state legislatures, not to mention the US Congress, will be willing to go out on a limb to (it will be said) protect child predators?
The solution to the "sexting" problem is common sense and prosecutorial discretion. Hopefully we'll see more of both!
Missing prerequisite (Score:4, Insightful)
determine whether a picture constitutes child pornography
We don't have a scientific or legal definition for whether a picture constitutes any sort of pornography, other than Oliver Wendel Holmes' "I know it when I see it".
Evolving Standards (Score:5, Insightful)
The concept of picking the illegal photo from a lineup of legal ones is a good one, but it will inevitably lead to a slow migration of the legal standard to an ever more permissive definition of provacative. In order for a photo to be consistently selected from the lineup it would have to be significantly more provacative that the legal ones. Any photos that were only sligthly more provacative would not be identified and would therefore become part of the suite of photos that had been determined to be legal.
The real test (Score:5, Insightful)
Was the subject abused or otherwise injured (psychologically or physically) by the photography? After all, child pornography laws are there to protect the children involved. If they took the pictures themselves, it's hard to make a case that they were injured.
It seems to me that if they're old enough to take responsibility for their actions in creating the pictures, and therefore old enough to be punished for them, then they're old enough to have given consent.
Sometimes, a test without context would be appropriate. In other cases, like this one, the context is sufficient to determine innocence without even looking at the pictures.
Childporn or sexual repression? (Score:5, Insightful)
The article claims it is about childporn, but the story reminds me more of the kind of sexual repression of young people that I normally associate with countries like Iran...
Re:Childporn or sexual repression? (Score:5, Insightful)
The article claims it is about childporn, but the story reminds me more of the kind of sexual repression of young people that I normally associate with countries like Iran...
I wish I had modpoints. The attitude of western societies towards perfectly normal sexual behaviour among adolescents is becoming horrifyingly hysterical and repressive.
Parent
Re:Childporn or sexual repression? (Score:5, Insightful)
You do realize that the USA has a lot in common with such religious zealotry already, right? Dry states, sexual repression, penalties for sexual themes and discussion on television, avoidance of exposure to nudity in art, etc.
Parent
We have forgotten the whole purpose of the law (Score:5, Insightful)
IAAL
The whole purpose of child pornography laws is to protect the minor victim.
Under the law, a minor child CAN NEVER give consent to a sexual act. Period. There are exceptions for teenagers with other teenagers, but beyond that there is no exception (hence statutory rape laws). The whole point of making child pornography possession illegal is to get around the loophole of "I have a picture of an illegal act, but you can't prosecute me because you do not know who is in the picture."
Now when you actually KNOW who was depicted in the picture, and the circumstances surrounding the picture, you can make a determination as to whether the underlying sexual offense has taken place.
I find it impossible to comprehend the charging of a minor for possession of THEIR OWN PORNOGRAPHY!!! We are now prosecuting the person whom the law was written to PROTECT!!!
The question should not be "is it pornography?" The real question is "was the person who is shown in the photograph illegally exploited?" That is a much simpler question to come to terms with, and by ignoring that question, you make a mockery of the legal system.
Re:We have forgotten the whole purpose of the law (Score:5, Funny)
That reminds me of a case once, where a woman charged her "partner" with rape after feeling guilty of the act.
The courtroom conversation went something like:
a. And did Ms X ever say no to proceeding with the sexual act.
b. She said something to the effect of "no, we shouldn't be doing this, oh no"
a. And why did you not take this to mean that she was unwilling to engage in a sexual act with you
b. She was removing my pants while she was saying it.
Parent
Idiocy. Again. (Score:5, Insightful)
Okay, first, you can't "scientifically test" people's sexual mores. It's a question of taste, culture, environment, and context. Second, the definition of pornography has long been held to be something along the lines of "You'll know it when you see it." This has actually been used as the legal test in many courts in this country. Third, people are stupid frothing-at-the-mouth retarded and lobotomized flatworms as soon as they become emotionally engaged in a social problem, and doubly-so when it involves criminal charges.
The legal system is a crap shoot. As a defendant you can be hung even if you make completely honest statements. False witnesses, poor quality of evidence, lack of evidence, or (god help you) eyewitness testimony, etc., can all destroy the credibility of a defendant who is completely honest on the stand. If you excercise your fifth amendment rights, the jury will pretty much hang you on that basis alone -- nevermind the VERY strong legal arguments for doing so (even if you're innocent). Not only that, but did you know that in something like a quarter of rape cases where the defendant was later aquitted based on DNA evidence -- they admitted to the crime? Not that YOU would ever do something like that, but why do you suppose they did it? And let's not even get into over-zealous prosecutors, incompetent judges and attorneys, "lost" or witheld evidence from the police department--because we all know they aren't human but in fact infallable robots who never make honest mistakes, let alone malicious ones. Did I mention that a lot of people plead guilty to lesser offenses simply because they don't want to deal with the hassle and stress of a trial? A lot of people do this. Think of when you got a parking ticket or speeding ticket -- after venting about how you're going to fight the man, etc., and how the cop was just singling you out, etc... How many of you knew you weren't guilty but decided to give in anyway and pay the fine just because it was easier than a fight and the risk of losing and having to pay even more (and pay you will, Citizen).
In the majority of cases, the trial is over before it even starts. And people don't learn -- it doesn't matter how many innocents they throw to the wolves, because in their mind they're justified for doing so "because we got a few bad guys doing it too!" People are irrational, emotional, slathering rat-beasts. And they're stupid. Just realize how stupid the average person is and then realize that half the people serving on your jury will be stupider than that. Oh, and the icing on the cake? I don't know you, but I'm sure you've committed an arrestable-offense today. There is no person on the planet who can understand and follow all the laws we've created. And there are so many of them, that the odds are incredibly good that you've broken at least one of them. So all of you are criminals. We just haven't caught you...yet.
Lastly, consider this: What if one of these girls had been a boy instead. Ah, but justice is blind they say.
better method (Score:5, Insightful)
Perhaps someone can think of a better method that is still roughly scientific,
Yupp. Don't make thinking illegal.
This is part of the whole "victimless crime" item, except that in the vast majority of cases, you can not even establish probable danger.
If I am speeding on a safe, empty road, I'm not really putting anyone at risk except me, but you could argue that there might be a child hiding at the precise tree I'll be slamming into, or someone somehow gets in front of me without me noticing quick enough - etc. Short version: While in that actual situation nobody might have been harmed, a small modification of the situation creates plausible danger, hence you could argue my speeding needs to be punished.
Now try to extend that to someone looking at cartoon characters fucking. Uh, wait, seemingly underage cartoon characters (whatever that means) fucking. I challenge you. Which small modification of the situation causes harm or puts someone at risk?
There's no risk here. Not even a theoretical one. AFAIK the often provided "looking at drawings that look like a 12 year old doing naughty things causes children to be harmed for more porn production" line has no scientific evidence for it whatsoever. In fact, all evidence we do have suggests that the more you suppress sexual desires, the stronger they will erupt when the barrier falls.
Quite honestly, my personal belief is that these kiddie-porn-crusaders are probably causing more actual damage to children than the vast majority of those who enjoy sexy cartoons.
In the end, though, this is a lost cause. Evidence, truth and justice are not on the agenda of 99.99% of the people involved. Just look at the lineup. Politicians, lawyers, policemen. All people who stand to profit from more laws, more complicated laws, broader laws and more difficult to decide legal cases.
Salem Witch Trials (Score:5, Insightful)
Re:Is it just me? (Score:5, Insightful)
I think it's more disturbing that you think females past the age of puberty are somehow not sexual beings and that having a sexual interest is somehow unnatural and wrong.
Parent
Re:Some cases are subjective (Score:5, Insightful)
I don't know. At the risk of being branded by knee jerk reactionaries, I have a hard time with the concept that the photo itself is the illegal part. Simply seeing the photo is deemed to have committed the crime whether or not you keep it, distribute it, etc. If, for God knows what reason, have a collection of photos of murder victims, torture victims, what-have-you, somehow they are perfectly fine. It's the original act that is abhorrent and illegal. Yet somehow if I even *see* a picture of a 14 year old's naked form I'm committing one of the most heinous crimes you can commit today.
*IF* a child was exploited or harmed in the making of the photo the exploitation or harming of the child is what should be deemed illegal. If someone paid someone else to assault the child they should be tried under that crime. Everyone goes on and on about how they are just trying to kill the "market" for this material. Yeah, right. First of all that argument is very tenuous in 99% of the cases and second, we've seen what that kind of tactic has had with the drug wars.
Listen, whether they admit it or not, almost everyone on slashdot knows how and where to get CP. If we do, don't you think the authorities do? If we can track down the hosters and owners of these websites why can't the feds? I get the impression that a lot of this brouhaha is hand-waving and a smoke screen for a different agenda. (see my sig)
I think child exploitation is abhorrent, but in this sexting case and in may other cases like it the only ones doing any exploiting are the prosecutors. I wonder sometimes if they don't get so light-headed and guiltily excited at seeing those pictures that they feel there must be something wrong with the pictures - otherwise they'd have to admit there might be something wrong with them.
Parent