(Cross-Posted from Yes Means Yes Blog.)
This morning the New York Times reports that the ACLU has joined some courageous young women in a counterattack against a recent and disturbing moral panic. More than once recently, school and criminal justice authorities have threatened to use child pornography laws against teenagers for the distribution of photographs of their friends and classmates, including even against girls depicted in these pictures. A few have even been charged. Violet Blue had a rundown for the SF Gate. Atrios picked up the ACLU story yesterday, but this trend has been on Harper Tobin’s radar screen at polymorphous perversity for some time now.
(Harper is the source on this topic. While I’m a lawyer with good familiarity with these issues, I won’t engage on the legal analysis because I simply can’t improve on what Harper has done.)
In this case, a Pennsylvania Republican prosecutor threatened criminal charges against more than a dozen teens identified in or caught possessing sexually suggestive photos sent to students’ cell phones to bully them into taking courses on sexual violence. Three of the girls decided to fight back and sued.
My first reaction to this, perhaps obviously, a simple outrage at the prosecutor’s conduct. Molesting children and creating child pornography, I would hope, shocks and appalls all of us. The legal tools that have been created to deal with child pornography are draconian. They work within a narrow carveout to otherwise broad First Amendment protections — for example, there is a right under the Constitution to privately possess even obscene pornography, but not child pornography. Child porn charges come with both long terms of imprisonment and tremendous social opprobrium, and they generally also require registration as a sex offender, which imposes limitations and restrictions on residence, and oversight, and notification requirements, that follow convicts for a lifetime. This exercise of state power is so severe and thoroughgoing that some folks on the political left are ill at ease with it, even when used on child pornographers. Even among those of us who find this regime appropriate, we generally only think so when it is applied to the people it is meant to be applied to: sexual predators whose targets are children. Obviously, these laws were never meant to be applied to conduct between teenagers and their age appropriate sexual partners.
When I think beyond the reaction of outrage, I come to the conclusion that there are two possible rationales for bringing to bear this terrible legal artillery against teenage girls. They are equally unpalatable, and I hope that by talking about them, we can start to point the public discourse in the direction of a more sane and less panicked response to teenage sexuality.
First, some folks seriously assert that threatening or even bringing criminal charges against the could be in their own best interest. This is ludicrous, and anyone making this assertion should be laughed at. In order for this argument to work, the harm to these young women (and we are talking about young women here, I have not yet seen any sign that the authorities are bringing to bear the force of criminal prosecution against anyone for distributing pictures of high school boys to other high school students) caused by the distribution of their images would have to be greater than the damage done to them by the sanctions themselves.
Being convicted of a crime is a rather serious matter. Even assuming no sentence of imprisonment, a conviction of a felony alone would bar a young woman from an endless list of rights that the rest of us take for granted: she could be refused jobs, admissions to schools, professional licenses, barred from living in certain places, and even denied the right to vote in some states. Add to this the requirements placed on sex offenders. There are some places where sex offenders are barred from living so many places that they are effectively limited to shelters. Further, even jobs and educational opportunities that would be open to ex-convicts are often (and generally rightly) closed to convicted sex offenders. We treat these people as beyond the pale.
Imagine the life of a 17-year-old girl with a felony conviction for distributing child pornography because she sent a nude photograph of herself to a teenage boy on her cell phone. If she’s middle-class and white she probably had college aspirations which are now gone, and she can’t work with or anywhere near children. You probably can’t get a job at a hospital. She probably can’t get a job with the church. Even secretary and receptionist positions in offices may be closed if they do a background check. She may not be able to live in her parent’s house if it is near a church, school or daycare center. She may not be able to find any place where she can live in her own community. If she’s not white and middle-class the picture is even more grim. For example, young blacks and latin@s already end up in the criminal justice system at wildly disproportionate rates. If she already has a felony conviction, the dispositions of criminal trouble otherwise available to her will not be. Arrests for minor fights or public intoxication or minor drug possession in many places are resolved with a plea to a noncriminal offense, or with what New York calls an “adjournment in contemplation of dismissal,” which makes the case go away if the defendant stays out of trouble for six months. The same woman, who might be offered those dispositions without a criminal record, will almost certainly face a worse plea offer, and possibly the charges could put her in jail on violation of parole or probation.
So basically, whatever this girl’s social position, we are talking about ruining her life. We are talking about consequences that will follow and limit her forever. In order to justify this as some sort of tough love measure, the consequences to her from circulating her picture would have to be dire indeed.
First, the consequences are not all that serious. The Internet is awash in pictures young women, the existence of which do not bar them from living in the residence of their choice, or from attending school of their choice, or require them to report to a parole officer, and while the existence of nude photos sadly effect women’s ability to hold certain jobs, these limitations are much narrower than the limitations imposed on convicted sex offenders.
The real irony is that, as sexual conduct between teens goes, most of it is noncriminal. The median age of first PIV intercourse for American teens is 17. In many states, there is a specific “Romeo-and-Juliet” clause that exempts similar-age pairings from prosecution under statutory rape laws (and it has long been my view that such an exemption should exist everywhere). So these kids face no sanctions if they have intercourse, which can transmit STIs and cause unwanted pregnancy. But if they send each other nude photos, they’re felons. That’s absurd on its face.
Second, those consequences that do arise are largely not preventable by the time the authorities become involved. The pictures are already out there. Some attempts to destroy every copy of the pictures, while probably doomed to fail, at least makes more sense as a method of protecting the young women in the pictures. Punishing a teenager for circulating them leaves her exposed to all the consequences of having the pictures out there, and also to the punishment.
Finally, and in my mind most importantly, the consequences to her arise entirely or almost entirely from the inappropriate actions of others; either in the form of abuse by men, or of slut-shaming by prudes. Media attention recently focused on the story of Jesse Logan (again, Harper has the story), a young woman who killed herself after nude photos of herself were circulated. As Elizabeth as Sex In The Public Square pointed out, she was not a victim of her own conduct, or the pictures, but rather the actions of others in the aftermath. If there were no slut-shaming and no overzealous prosecutors, there would have been no consequences.
To take another example, my all time favorite Yes Means Yes post, Stacey May Fowles’s Because She’s “Up For It”, describes how young who are publicly marked as sexual may be targeted by rapists. However, I do not believe that women are to blame for engaging in behavior that brings them to the attention of rapists as potential targets for their criminal behavior. Rather, I believe the rapists are to blame for engaging in criminal conduct, without regard to how they select their targets.
Having exhausted the perhaps tedious analysis, I think we can safely conclude that the notion of using child pornography charges to “straighten out” young women who circulate photographs of themselves is logically hopeless. This is what some military officers call Ben Tre logic, after a town destroyed by US forces in Vietnam “in order to save it.” (Vietnam war correspondent Peter Arnett during the Tet Offensive in 1968 attributed the quote that is the title of this post to an unnamed United States Air Force officer, whom some authors have subsequently identified as Major Chet Brown.)
I can think of another rationale which is just as desperately wrong but for different reasons. The other thing, and what I think is more likely really going on here, is deterrence through fear. Some folks are so determined to impose social control on young women’s expression of sexuality that they are willing to turn a few girls into convicted sex offenders in order to terrify teenage girls everywhere into toeing their prescribed line. Responses to women’s, and especially young women’s, expressions of sexuality have always been hysterical (pardon the ironic use), and colored by both panicked reaction and drooling exploitation (See Jessica Valenti’s new book Purity Myth. See also Britney Spears, and the media’s reaction to her and every other underage girl marketed simultaneously as sex object and virgin).
In this sense what we are witnessing here is absolutely not new. In Against Our Wills, Susan Brownmiller wrote about the historic use of rape as a tool of social control to terrify women out of questioning the limits imposed on their behavior. The spectre of rape and other violence, the use of legal force and community shaming to get women to express sexuality only and exactly in the prescribed ways and never in any other way — this is one of the oldest components of the feminist critique of the politics of sexuality and sexual expression. Sexting is just the newest moral panic in the same old game.
Let me say this loud and clear: charging young women with sex offenses for distributing photographs of themselves is social control by intimidation. It ruins young women’s lives to make an example of them, to keep others in line. That is not conduct I can accept in the country I’m raising my daughter in.