Light Hands and Sticky Fingers

Put the two words, “child porn,” together and well-intended parents shudder. We must do something, they cry, and so laws are enacted to criminalize and harshly punish these disgusting miscreants. Careless laws that reach farther and wider than the evil perv sitting on a park bench, eyeing little girls with bad intent.

But the passionate advocates will tell the horror stories, capture our deepest fears and unrelenting disgust, and out come the pitchforks as the townsfolk march on . . . Jane Doe.

“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.”

Jane Doe is a 14-year-old girl who sent a “sexually explicit selfie” via Snapchat to a teen boy, who then shared it with others. No, the New York Times hasn’t done a feature on Doe sexually harassing this boy by sending him uninvited porn. Rather, this comes from the ACLU, which is appearing as amicus in support of the defendant.

“To suggest that a juvenile who sends a sexually explicit selfie is a victim of her own act of child pornography is illogical,” stated Teresa Nelson, Legal Director of the ACLU-MN. “Child pornography laws are supposed to protect minors from predators, and Jane Doe is not a predator.”

That’s certainly true. What’s unfortunate is that these laws, enacted in a rush of passion, pushed by the well-intended to eradicate the horrors of child porn, failed to take into account the fact that it criminalized selfies along with all other sexually explicit images of children.

The ACLU argues in its brief that the prosecutor is abusing the intent of the child pornography statute. It is intended to prosecute people who endanger or victimize a juvenile. If there is no victim, then there shouldn’t be a prosecution.

This argument seeks to circumvent the problem, that while the intent of the law may be one thing, the language of the law makes Jane Doe’s conduct a crime. She may not feel she’s a criminal. Everybody may be doing it. The intent of the law may not have covered this, but the law says she’s screwed.

Jane is represented in juvenile court by John Hamer of Hoffman, Hamer & Associates, Pllc, he states, “Pursuing felony charges against victims will not deter teens from exploring their sexuality.  It will, however, prevent victims facing exposure and bullying from coming forward.  The message being sent to young women is that if this happens to you, it is more your fault than his.”

Jane is a victim? Of what? No wonder the ACLU got involved, as Hamer’s quote makes no sense at all. To the extent there is any fault involved, it is obviously more Jane’s fault than the fault of a boy who received her selfie. She sent it, and by what twisted reasoning does that make her the victim? As for her parents’ concerns about the reaction to the selfie after it was shared, it was a little too late to undo their failure to teach their daughter that sending sexually explicit selfies was a terrible idea and she shouldn’t do it.

But despite all this inanity, prosecuting Jane Doe for child porn of herself remains a ridiculous use of harsh, poorly-drafted laws. So why is the prosecution doing this when they have the discretion not to do so?

The prosecutor charging Jane is bucking a national trend.  The president of the National District Attorneys Association has urged prosecutors across the country to approach teenage sexting with a light hand, avoiding criminal charges in many cases and finding ways to impose less severe and lasting punishments in others.

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.

There is no shortage of people to blame for this ridiculous situation. From the legislature to the parents, the promoters of sexual agency for young women to the hypocrites who would be demanding blood if the genders were reversed, to the unduly passionate who demand untenable solutions to complex problems.

But does this ultimately fall on the shoulders of the prosecutor to clean up the mess everyone left for him? In a more rational world, he would have heeded the admonition to use a “light hand,” but the reality is, and has always been, that relying on the noblesse oblige of prosecutors is never a sufficient or satisfactory way to fix the mess laws create.

And there remains one issue that’s too easily overlooked in this morass. Where are the voices telling 14-year-old girls that sending sexually explicit selfies is an incredibly bad idea, and they shouldn’t do it? Granted, parents’ control over their children’s exceptionally bad choices has limits. But the same people crying about revenge porn are simultaneously bolstering sexual agency, the “right” to send people naked images, as if this is a good idea. It’s foolish for an adult, but it’s awful for a child.

It is a decidedly unprogressive idea to tell young women that they shouldn’t do whatever they feel they want to do, because nothing matters more than their freedom to do whatever they want without consequences, but if there was no sexually explicit selfie sent in the first place, there would be no prosecution, no ramifications at school, no gibberish claims of victimhood and no need to manufacture untenable rationalizations about how irreconcilable problems should be reconciled.

17 thoughts on “Light Hands and Sticky Fingers

  1. Billy Bob

    And no blawg entries to slice and dice these morasses du jour. We predict that 14 year-old Jane Doe will become a successful and influential activist for criminal justice reform somewhere down the road. It transmogrifies into a “blessing in disguise.” Maybe the prosecutor never got the word to treat thee cases with a “light hand.” What we have here is a “failure to communicate.” Ha.

  2. Mike G.

    It can never be stressed enough. Parents need to tell their kids the internet is forever and not to put anything out there they wouldn’t want their grandparents to see on the front page of the New York Times.

    Merry Christmas SHG!

    1. SHG Post author

      I’m not a fan of the “grandparents test,” which I consider a palliative for blithering idiots. You are, of course, free to like it, but that doesn’t mean you get to make people stupider here.

      Merry Christmas, Mike.

  3. CLS

    Your last point drives the overlying problem home.

    Someone gave Jane Doe the device that allowed her to access Snapchat. Someone either didn’t instill in her the morality or sense to think taking sexually explicit photos of herself and sending them to other kids was a really bad idea.

    Instead of teaching Jane Doe values at home, it became perfectly acceptable for her to do it because “all the kids do it.” And now because someone didn’t bother to teach her anything about the consequences of such actions, she’s looking at life on a registry.

    Our society as a whole is morally bankrupt.
    Merry Christmas, SHG.

    1. SHG Post author

      I’m not a fan of chalking it up to morality, as opposed to just a really bad idea with a strong probability of causing her terrible problems. Either way, though, somebody should have taught her, in particular, and all kids, in general, not to do something really stupid.

      Merry Christmas, Chris.

  4. Greg

    I suspect the “victim” characterization comes from the recipient sharing Jane Doe’s photo with others, presumably without her knowledge or consent. A bit off topic for her lawyers, since the boy to whom she sent the photo doesn’t appear to be a party in this action, but not an unreasonable thought in the common, non-legal sense. Clearly Jane Doe bears the root responsibility for having taken and sent the photo, but the boy sharing it with others was still a jerk move, to put it mildly.

    1. Mike

      The boy is not a party in this case but surely he is also being prosecuted for possession of the pictures right?

  5. Patrick Maupin

    Jane is a victim? Of what?

    This is a golden opportunity for your profession. “Yes, your honor, my client did rob those banks and rape those women. But he’s the victim here — nobody else is facing any consequences remotely as bad as felony charges and sex offender registration!”

    The prosecutor should be commended for properly playing his part in this reductio ad absurdum farce. This boil isn’t going to lance itself.

    1. SHG Post author

      Your problem is you’re capable of reason. Note Greg above, who is in touch with his “common, non-legal sense.”

  6. B. McLeod

    Well, don’t you see? Teenage girls should be perfectly entitled to send sexually explicit selfies, secure in the knowledge that the recipient is not allowed to share or misuse them. Even if it’s a crime to send the sexually explicit selfies. The point is that they are entitled, by virtue of their gender, to be absolutely protected by others, whether they look out for their own interests of not.

    As I see it, prosecutors making stupid use of a stupid law are providing an important service by cogently demonstrating the stupidity of the law. They are simply faithfully enforcing what the morons who enacted the law have written. To suggest the contrary is “victim blaming.”

      1. Patrick Maupin

        I suffered a bit of cognitive dissonance until I realized you were referring to the first paragraph only.

        Anyway, Merry Christmas!

  7. MonitorsMost

    Prosecutors abuse their discretion all the time, why wouldn’t they do so when it comes to sexting teens? In the unfortunately unfamous words of Ken White:

    “Any criminal defense attorney who has served affluent clients is familiar with this: such clients often conclude that they are a victim of a conspiracy, or of a ‘rogue cop’ or ‘loose cannon prosecutor,’ because their life experiences lead them to assume that the system can’t possibly treat all people the way they are being treated.”

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