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.