I know this will be a shock to everyone, but teenagers are having sex. Probably at the very moment you’re reading this. In many states, it’s perfectly legal for them to have sex at 16 or older. And most every teenager now has a smartphone that will save voice messages, take pictures, or record video.
Of course, younger teenagers — 12- to 15-year-olds — are dating, too, in that sort of delicious stage where French kissing is transgressive and OMG she let me touch her … you remember, right? And those younger teenagers also have cell phones that can take pictures and record audio and video—along with applications like Snapchat that promise perfect privacy. (Falsely, of course, since you can always make a screenshot, but that’s what they promise.)
Add to that the fact that many people do find it kind of, well, hawt, to share racy pictures with their lovers, boy or girl friends, or even as aggressive flirting, and you have a situation in which people under the age of 18 are likely going to be taking and sharing more or less sexually oriented stuff with their friends.
I don’t ask that you like it, I’m just saying it’s gonna happen.
Given that, the next question is, “Should a teenager who exchanges naughty pictures be sent to federal prison for 15 years and then be made to register as a sex offender for life?”
If you’re inclined to say “yes” — maybe because you think that no prosecutor would actually prosecute such a case — let’s just mention a couple examples of the results:
- A teenager who was having consensual sex with his girlfriend, who was over the age of consent in her state. They took some videos together, again consensually. (The court delicately took note that “the photographs depicted S.C. naked in a blatantly sexual way. However, the photographs also graphically establish that S.C. was a willing and voluntary model.”) Then they broke up, and while she asked him to delete the videos, he didn’t. He also didn’t share them with anyone else, until the police got a warrant to examine his phone for another purpose, and found them. He was then charged, prosecuted, and convicted for possessing and distributing child pornography. (His conviction was eventually overturned, with the appeals court giving an opinion that was the legal equivalent of “Are you people mental?” Quote: “In view of these circumstances, and the maxim ‘Cessante ratione legis cessat et ipsa lex’ [When the reason of the law ceases, the law itself also ceases], we conclude that the reasons [behind the statutes applied] are inapplicable to the photography in this case. Therefore, … we reverse [Defendants]’s convictions.)”
- Another teenager, who had his own naughty video (really mostly audio) of his own romantic encounter on his phone. His school and a local policeman coerced his consent to look at the phone, discovered the video, and then threatened him with child pornography charges. They told him that he would be registered as a sex offender, making it clear that his college plans were over, his career hopes were over. After the fact, the police insisted they would never actually have done that, but they were apparently quite convincing because while they were waiting for his mother, he got to a five-story parking garage and threw himself off, dying as a result of his injuries. His conviction was not overturned.
The problem here is that a 14-year-old girl sending a boy a picture of herself wearing a sports bra and boy-shorts panties (yes, that is a real case) is just not the same thing as someone who collects pictures of adult “men” raping five-year-old girls, but the law treats them the same. Of course, we would hope for the application of a little prosecutorial discretion — but these examples show that we can’t expect it.
So now, a freshman congressman from Louisiana has proposed a bill requiring a mandatory 15-year sentence in these situations. No exceptions.
This is an idea so bad that even Rep. Sheila Jackson Lee (D-Neptune) said it was stupid. Sadly, only two Republicans objected to the bill, Reps. Justin Amash of Michigan and Thomas Massie of Kentucky.
I imagine that when the bill gets to the Senate, it will either be allowed to quietly die — especially if people let their senators know about it — or else will be quietly amended. The problem is that amendments tend to add more special conditions with their own unexpected side effects.
Wouldn’t it be better to rethink this whole law so that protecting real children from real abuse isn’t conflated with teenagers making out?