Thursday, July 14, 2011

Tweet this

Twitter is ridiculously powerful.  There was a time when politicians flirting with women who are not their wives would have simply denied the charge if confronted or when game companies who threatened anyone who gave their games a bad review could have hidden behind 'he said, she said' games.  No more.  Now those politicians send their messages to the world via Twitter and get themselves removed from Congress instead.  These days companies that make threats to game reviewers do it publicly and on record and get taken to task by both other companies that deal with them and the people who in theory are going to buy (or not) their games.  What boggles me more than anything here is that these people are not idiots.  Teenagers sexting each other can land themselves in all kinds of trouble but they at least have the excuse that initially they were nobody important and that they are young and foolish - what excuse do executives and Congressmen have for hitting Send on things that could easily lose them their jobs, companies, friends and livelihoods?

Bill Clinton really made a mistake when he had sex with Monica Lewinsky and it cost him.  However, it took a damn long time to prove and even after he was accused of the act he very nearly got away with it because there wasn't an obvious record of the event.  This has always been true; whether you look at accusations of infidelity or  murder trials it has been extremely difficult to prove convincingly what happened since eye witnesses are so incredibly unreliable.  These days so much of what we do is recorded and stored somewhere it is much easier for people to prove objectively and without a doubt what exactly happened and it catches all kinds of people by surprise.  Why don't we figure this out?  Why can't people wait to tweet their frustration until they have calmed down, cooled off and thought about the ramifications?  I think it is simply that we are all programmed both from life experience and evolution to not base our behaviour around the idea that everything we do will be recorded.  You can always lie, cheat, obfuscate or play around with the truth, except when you can't, which is really only true today and has not been true before.

I figure that people have always made these sorts of inflammatory comments and gotten involved in ill advised flirtations and always will.  We as a species don't have the will to resist the urge to talk even when we are doing so on the record and only now it is true that denial simply fails much of the time to irrefutable evidence.

One truly disturbing footnote to this is that teenagers are being arrested and convicted of child pornography charges in the US because they took pictures of themselves and sent them to classmates!  Both the people receiving the pictures and the ones taking them are potentially breaking extremely serious laws that were never intended to be used against them.  Clearly child pornography is evil - but kidnapping children and forcing them to work in sex videos is child pornography and teenagers taking nudes photos of themselves and sending them to classmates is most certainly not.  Any laws that don't make that distinction need to be changed, and soon.


  1. How would you change them? There are all sorts of points on the line between kidnapping and one picture. Even in the linked report you're talking about a 17 year old boy with nude photos of a 14 year old girl.

    The best part is they only got caught because a guy violated the school's cell phone policy and was using his in class and got it confiscated.

  2. Changing them would be tricky, obviously. Thing is, 14 year old girls having sex with 17 year old boys is perfectly normal sexual behaviour. Advisable? No. Common? Absolutely. Criminal? Definitely not. I think we can agree that exchanging nude photos is drastically less impactful than actual sex so I can't see how either of them could be culpable. Now if that 17 year old boy distributed the pictures we get into very nasty territory, but as long as all he does is look at them then I can't see any argument for legal intervention.

    I won't claim to have a good set of rules that would usefully fix the laws, particularly because I don't know what the child pornography laws say right now anyway and they probably differ from place to place. What I do claim is that whenever you have a social phenomenon that is consensual on all sides, is so common that legal action against all offenders is impossible and which does no physical, financial or direct mental damage to anyone there should not be a criminal response from the state.

  3. Well, it is criminal in a lot of places. One is over and one is under the age of consent. (Oddly the age of consent for male-male sex in Canada is 18 but for female-female it is 16. The idea that it's legal for me to go pick up a 17 year old girl and criminal to do so with a 17 year old boy is a bit odd. Not that I would do either.)

    The problem with letting the 14 year old take such pictures and send them to people is what if she sends them to her teacher? What if she does so maliciously? What if she's coerced to do so? What if she sends them to a 17 year old who then keeps them for 10 years? Is he guilty of possessing child pornography then?

  4. I wonder about the differences between male/male sex and female/female sex. It seems utterly odd.

    Coercing a 14 year old into getting naked and taking pictures of herself is sexual assault whether or not anyone ever sees those pictures so that situation is quite solved.

    If she sends them to someone else then that person should presumably delete them and then alert school authorities / the police / her parents depending on the situation. I still don't think that there is anything criminal about receiving those pictures, though clearly distributing them is criminal.

    The fundamental problem with child pornography is children being hurt by it, not by people viewing it. A 14 year old who takes pictures of themselves does not need state retribution, they need parental guidance. We shouldn't be prosecuting anybody who receives these sorts of pictures, only those who distribute them or those who create them without obtaining consent (which an underage person cannot give). Given that I think the 17 year old who gets those pictures should absolutely not be prosecuted for keeping them. Is it an asshole move to keep them for 10 years? Sure. Should he be locked up for many years and forced to register as a sex offender for doing so? Absolutely not.

  5. Why is it such a jerky thing to keep them for 10 years?

    The 14 year old in question here is the one who both created and distributed the pictures. Without consent from herself, apparently? But she shouldn't be punished because she didn't exploit herself in the process?

    I just don't see what's to be gained by letting her do such a thing.

  6. Nude photos of a 14 year old are generally speaking not something that is good to keep. I don't think it should be a criminal offence (presuming the pictures were taken by the person in the pictures without coercion) but keeping them entails moving them around on various storage devices and risking them getting out. They could be extremely embarassing to the person in question (10 years later, remember) and so I would think that destroying them is the right thing to do. You would do so to prevent the adult from suffering due to a foolish action committed years and years ago.

    Just to be clear: You are suggesting that the best solution to a 14 year old taking pictures of themselves naked and sending them to another teenager is years in prison? Forcing them to go to their neighbours to inform them that they are a sex offender?

    Now if you wanted to argue that a smaller category of offence should be created I would support that. Underage sexual photos that are not widely distributed, not distributed for profit and which are taken without coercion of any kind could really stand to have a series of punishments like fines, community service, etc, potentially escalating with repeat violations. Having these kids realize that their actions were stupid and potentially destructive (not to mention borderline *very illegal*) is a reasonable plan. That is the sort of change in the law I would support happily - I don't mind whacking the kids back into line but full on child pornography charges are so incredibly brutal and completely inappropriate that we are doing ourselves a tremendous disservice by applying them in these cases. Teenagers who do foolish things to themselves need guidance, not prison.

  7. The 18-year-old thing is not for male-male, it's for anal sex. So you can perform other male-male sex acts at 16, and you can't have anal sex with a woman at 16. Of course the other exception is if you are married, and the age of consent laws have a 5 year close-in-age exemption for 14-year-olds, so a couple of 16-year-olds who get married (legal with their parent's consent in Ontario) can do it, or a 16-year-old who marries a 40-year-old. Of course I don't think anyone has been charged under this law in a long time and I don't think anyone will.

    Basically our sex laws are extremely confused and nuts. Forget naked photos, our current child pornography laws are somewhat unclear as to whether a teenager writing in their diary about being raped by an old person would constitute the creation and possession of child pornography (the best legal defense if it came to court would be to argue that it had a "medical" purpose based on accepted therapeutic value of journaling).

    Sex laws, unfortunately, mean politicians talking about sex in public. The reason the anal sex law is still on the books is because changing it would mean politicians saying "anal sex" over and over and over. That pretty much means we are doomed to have bad sex laws forever. As a result, it's really up to police and prosecutors to figure out when charges should be laid. This will occasionally result in awful situations like criminalizing ordinary teenage sexual behaviour at random.

  8. I don't know that years in prison is necessarily the right answer (and even in the link you gave it didn't seem to be an option right now) but I do think something needs to be done. Being on a sex offender registry for 10 years is something I can see as being reasonable.

  9. There was certainly the possibility of jail time in the linked case, it simply notes there isn't a mandatory minimum sentence. Also remember that the girls who took and shared naked photos of *themselves* were being charged with the more serious crimes. The boys only possessed child pornography, the girls created and distributed it. I took a quick look at the Pennsylvania statute and they could go to jail for up to 20 years, in theory.

    Sex offender registries are very, very bad things to be on. Your neighbors and employers who can check (in some cases you are obligated to inform them) that you are on it only know you are sex offender, they don't get details of what happened. A man in his early twenties on a sex offender registry is probably going to be assumed to be a rapist, possibly a child rapist. He will not be able to get a large number of jobs, possibly any job at all, and may not be able to find a place to live. It might end up being a worse punishment than jail time.

    The criminal justice system is not nice. It's not a place where we give people stern warnings, it's a place where we ruin people's lives in retribution.

    Some of the pictures in this case didn't even involve nudity. Two of the girls who were being threatened with up to 20 years in jail and be branded as sex criminals took a picture of their chests while wearing bras.

    But even if they had been extremely sexually explicit, I'm still a little amazed that you would take the position that we should criminally sanction people taking naked photographs of themselves. I agree it would probably be hard to write a law that included everything we want to include and excluded everything we want to exclude, but that's no excuse for threatening teenagers with prolonged jail time for doing things that are at worst ill-advised.

    You say you don't see what's gained by letting her do such a thing. What's gained is basic liberty to make our own mistakes. We don't want people belching on streetcars, but I would think a law that put people in jail for life for belching on streetcars would be extremely unjust. And even that example involves inconveniencing others. We don't make laws against every teenage mistake. Our society would be an absolute wreck if we did.

  10. I have a big problem with rules and laws that aren't enforced, or that have no consequences. Outside the door to my office building is a big no smoking sign (within 20 feet of the entrance or some such), listing a by-law and consequences. Directly underneath it are a good collection of cigarette butts. Any time it rains (or for the whole winter) the smokers cluster right beside the door for shelter. Why do they keep doing this? Because they don't actually enforce the law.

    Sky seems to agree that having the 17 year old keep these photos around is a bad idea. It's bad for both parties in the future and potentially for society as well if they get out. But if we don't apply the punishments listed then what's to actually stop people from doing it? I'm not actually convinced that the threat of action stops much but I'm certain the threat of non-action stops even less. (I know someone who refuses to pay for street parking. Why? Because the fine for illegal parking is so light and the odds of getting caught are so low that it's a smart bet.)

    A sliding scale of punishment is almost certainly a good idea. Fine the parents a non-insignificant amount and make the kids do community service. Then if they get caught again, sex offender list. But I would rather the punishments as they exist now get applied than to just ignore the problem and hope it goes away. (Though I am also under the impression that there are scales on sex offender lists, but I believe I have that impression from TV crime drama so that may be off base.)

    And if the pictures were just bra and panties stuff, like you could see in a Sears catalog... Then something has gone very wrong.

  11. I think you underestimate the sex offender list. Say the person in question wants to be a teacher. Ooops, impossible. Can't legally happen. Is it even remotely reasonable to prevent a 23 year old from their chosen profession (which is also a really helpful and positive one) because they took a picture of themselves at 15 without clothes on? Doing so is brutal retribution for a crime that didn't exist - it is as bad as convicting someone of murder who was guilty of being parked illegally. Can you imagine being unable to travel, being barred from many or most professions, and having to go to every neighbour when you move to inform them that you are a registered sex offender?

    There are plenty of reasonable punishments for the actions we are talking about here but the sex offender list and jail time are completely outside the realm of justice, never mind the realm of 'is a good idea for society'. We *should* have laws that actually reflect right and wrong and which are perfectly enforced. That goal isn't achieveable. What we can do is try to avoid ruining lives and creating career criminals out of teens being silly.

  12. I agree that laws should be enforced, changed or removed, but unfortunately changing laws isn't a simple thing to do. I'd love it if politicians were brave enough to say, "These child pornography laws need to be changed to apply to fewer situations because they currently include things that clearly should not be criminal," but for the most part they would be afraid that any move to change the law would be seen as a weakening of it, and being seen as going easy on child pornographers is not a good way to get re-elected (it may be a good way to have to flee the country).

    It is also costly to remove laws. Pretty much every country has obsolete laws that have never been removed because it is not seen as being worth the time of the lawyers and legislators that would have to be involved when no one has enforce the law in a long time anyway. Some may even be obviously unconstitutional so that any attempt to enforce them would mean them being struck down.

    On top of that, writing laws is just incredibly difficult and there will always be situations that were not imagined when the law was written. Sex laws are particularly difficult to write, it seems.

    So given that the law isn't perfect, when you have a case that seems a little strange, it makes sense to ask a few questions about it. The crime we are trying to prevent is the exploitation of children. But does it really make sense to say a 14-year-old girl exploited herself? Generally exploitation has to involve some kind of power imbalance, which you can't really have with yourself. We also have the law because we think it is wrong for adults to be sexually attracted to children. But it would be absurd to say that it is wrong for teenagers to be attracted to teenagers. Most of all the law is there to protect the victims, which means that punishing the victims is antithetical to the intent of the law.