By Julia Gonsalves
Child pornography is a subject that shakes people to their core. The people who possess and watch the material have the label of pedophile constantly surrounding them. But what if a teenager was convicted of possessing child pornography after sending a profane and explicit picture of another person over a text message? Would that child still be a sex offender?
It is difficult to say as child pornography laws were created to protect children from being exploited by adults. However, if teenagers, who are close to the consensual age of sex, create and share explicit pictures of themselves they technically are producing and distributing child pornography.
The Supreme Court of Washington was one of the first courts to examine the particular issue of convicting a young man, age 17, of possessing child pornography after sexting a 22-year old woman. Former Washington Attorney General Rob McKenna touched upon the incident and noted that although the young male was technically the victim, the law of protection should not apply to him. The Supreme Court of Washington looked to the legislative intent of the child pornography statute, and how it was written. McKenna went on to say that the statute is to discourage images of children in sexual situations, and because the young man was the one who created the images, he was punished accordingly with 30 days in jail and community service.
For the states that do not have specific child pornography possession laws pertaining to teens, minors who are found with child pornography are still subject to felony child pornography changes and may be required to register as a sex offender. However, with children now gaining access to a smart phone at the age of 10, and becoming sexually active at the age of 17, most states have enacted laws that address minors sexting under the age of 18. For example, New York and Florida have attempted to create new legislation when punishing teenagers who have participated in sexting. The reforms look to giving prosecutors the discretion to choose between punishing individuals with child-pornography felony charges or misdemeanor charges. Other states, like New Mexico, have passed child pornography reforms to shield teenagers from child-pornography possession charges if they have received sexual images. Overall, the goal of these types of sexting laws is to maintain a balance between having minors not distribute sexual pictures and not creating an abstinence sexting world. It has been hypothesized that if parents, educators, and legislatures push abstinence with sexting, there will be more unwanted pregnancies and sexually transmitted disease cases.
Legislatures of all states believe that it will continue to be difficult for statutes to be created protecting minors from being convicted of child pornography, as the technological world begins to grow. In the past people used to send printed out sexual photographs with love letters while now the same pictures are in a digital format. Legislatures do not want to ruin the lives of a modern-day activity but want to lessen the potential of sexual crimes taking place through communication.
Bio: Julia Gonsalves is a 2L at Suffolk University Law School. She is currently a staff member of the Journal of High Technology Law. Julia is originally from Newington, CT and received her Bachelor of Science in Biomedical Sciences at Quinnipiac University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.