Decision suggests that sexting by minors would violate federal child porn laws

Clark v. Roccanova, 2011 WL 665621 (E.D. Ky. February 14, 2011)

Is there a violation of the federal laws against child pornography when the accused himself is a minor? A Kentucky federal court says yes.

Three 14-year-old boys allegedly “coerced, enticed and persuaded” a 14-year-old girl to make a sexually explicit video. Later the three boys transmitted the video over the internet. The girl filed a civil suit against the boys for violations of 18 USC §§2251 and 2252.

The defendants moved to dismiss, arguing that the statutes covered only the conduct of adults. The court rejected that argument. It found that nothing in the plain language of the statutes, nor in the legislative history, supported such an interpretation.

Both statutes prohibit creation, possession and transmission of child pornography by any “person.” While “person” is not defined in 18 U.S.C. §2256, the statute’s definition of “identifiable minor” begins by stating that a minor is a “person.” 18 U.S.C. § 2256(9)(A). The court found that indicates that “person” is meant to refer to an individual of any age, not just an adult.

8 thoughts on “Decision suggests that sexting by minors would violate federal child porn laws

  1. Ben

    If this interpretation is upheld by the Sixth Circuit, Congress needs to respond with an amendment to the statute. Although this decision might be supported by an isolated reading of the plain text, it loses sight of context.

  2. Michael Milligan

    I disagree with your assertion that it "loses sight of context." I believe the decision captures the appropriate context, and in fact more context than if the judge would have dismissed the case based on the perpetrators age. The purpose of the statute is, ultimately, to prevent harm to minors from sexual exploitation by others via media. How does the fact that the perpetrator is also a minor make the act any less harmful?

    There are two questions at play here:

    1 – the harm done to the minor by his convincing/pressuring/forcing her, by threat of emotional distress*, to record a sexual video and give it to him, then distributing it.

    2 – the culpability of the perpetrator for the crime because he is a minor vs his culpability if he were an adult.

    This can't be compared to the case of an adult having sex with a minor vs a minor having sex with another minor. In the case of engaging in actual sex, the damaging action itself is of a different nature – sex with a minor peer is of a different nature than sex with an adult.

    In the case of pressuring/coercing the victim to create a sexting video, then distributing it, the damaging act is the same whether inflicted by an adult or by a minor peer. It may even be argued that this act was, in some ways, more damaging because the perpetrator was a peer because of the distribution audience as well as the reason for the distribution. Whatever vile and illegal use the adult may have for the video, it could hardly be more damaging to the victim than distribution among her peers.

    I applaud this judge for not confusing the damage inflicted on the girl with the culpability of the perpetrator due to his age. As long as the perpetrator is of sufficient age and soundness of mind to distinguish right from wrong, and thus, meet the legal threshold of accountability, his age should be considered at sentencing and not before.

    * I don't believe the argument that intentionally withdrawing socially isn't of sufficient consequence to constitute extortion will hold. For one thing, he thought it was of sufficient consequence to use it. For another . . . it worked.

  3. Ben

    The ultimate harm may be closely related, but the situations are by no means analogous. There is a lesson for both groups here; that for the boys is obvious, and that for the girl is to be more careful on the Internet. A teen "coerc[ing], entic[ing] and persuad[ing]” another teenager is called peer pressure–something with which people of all ages must learn to deal. An adult doing the same to a child is not.

    Moreover, even if you accept that fact this activity should be criminal, is it really appropriate to subject teenagers to the penalties of the federal child pornography scheme (mandatory minimum of 5 years in prison and registration as a sex offender)? Although this was a civil case, the government is using these statutes to prosecute "sexters" with increasing and alarming regularity.

    This is the digital equivalent kids experimenting with each other and then telling their all their friends. The Internet may increase the damage, but, in my opinion, it shouldn't bring the activity out of the realm of adolescent exploration.

  4. Guest

    It seems that the "damage" here was done mostly by the peers of the 14-year-olds who shared the video with others by transferring the files from one person to another, and not by the girl by taking the video nor the boy by requesting it (though there's no details here on exactly how he "pressured" her), and once he has it he might be expected to show it to others just like a boy (or girl) would talk to their peers about having had sex.

    Maybe the greatest damage wasn't done by the boy asking for the video (if that's how it started) nor the girl making the video nor the girl sending the video to the boy but because the boy shared the file with others. Maybe a reasonable law could be created that would bar that, but which would allow for much lower penalties for minor couples simply sharing a photo between themselves within the content of their relationship?

    The boy may have a defense that since they can't have sex with each other but can at least flirt, perhaps date, and talk about sexual activity that watching each other or even sharing photos may be somehow part of normal romantic behavior, and if the girl were to be charged with "child porn" that could be a defense for her as well.

    It seems to be assumed though that the girl was by definition "pressured" because she's a minor and can't consent to sex much less consent to photograph herself. How much initiative, how much independent participation, how much pleasure must she take or engage in before she's considered an equal particpant and to not having been "induced" much less "coerced" into making the video?

  5. Robert

    If you wanted to take that angle then there should be an exception allowing for a person to create, possess and transmit material which only contains themselves. Otherwise, I would think a strict reading would also make the girl a party for the crime as she appears to be the creator of the material. Traditionally I would think the creation would be the more severe aspect since additional viewings by others which had no relationship to the 'victim' would be little. Ie, if she never found out that the whole country of XXXXX had seen it would she suffer any harm? If I was her parents I would have focused on coercion and harassment angle because the child porn aspect is likely to affect her worse than them as the creator of the content without which the other's could neither possessed nor distributed.

  6. Jonathan

    That excemption already exists though caselaw and the First Amendment, I believe.

    For example, Gebardi v. United States, faced with an identically worded statute, came to the conclusion that a person recognized as a direct victim of an offense cannot be tried for commuting that offense against themselves.

    Then there is Ashcroft v. F. S. C., of course.

  7. Jonathan

    Commenting on the decision itself, I believe if anything, the age of the perpetrator here should be considered an aggravating factor rather than a mitigating factor, simply because a person of that age is typically far more vulnerable to their peers than to anyone else.

    Certainly, the fact that the perpetrator is a minor should be taken into account by trying him in juvenile court, which is why it’s all the more a shame that the prosecutor refused to take the case.

    I should add that this decision is in line with many state legislatures’ decision to criminalize various kinds of cyber-bullying and harassment.

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