It Became Necessary To Destroy The Town To Save It

(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.

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39 Comments

  1. Subestimado
    Posted March 26, 2009 at 1:41 pm | Permalink

    I couldn’t agree more. We must do everything we can to empower young women who happen to be teens to post naked pictures of themselves if the desire to do so. It is important for our society that women are sexualized at as early an age as possible so that they may own the power they posses. The next moral panic will likely be the posting of sex acts. As feminists, we must stand with our sisters and say NEVER AGAIN. A woman, regardless of her age, is the owner of her body. If she chooses to distribute pictures of herself engaging in sexual activity, then so be it. We can help by pushing for lowering the so called “age of consent” and encourage love-in group teen sexual expression seminars across the country. Girls are not dogs to be kept at heel.

  2. dykelawyer
    Posted March 26, 2009 at 1:48 pm | Permalink

    Thanks for the hat-tip to PolyPerversity, Thomas. This case is truly over the top, and your post is fantabulous.

  3. Thomas
    Posted March 26, 2009 at 1:57 pm | Permalink

    Harper, I have been and remain a fan.
    Between us lawyers, shouldn’t there really be an exemption is 18 usc 2252, in in 2256, to the effect that no person shall have committed an unlawful act within the statute by reason of distributing that but for the presence of himself or herself in the image would not meet the definition of child pornography in the statute? Maybe leave in the definition an image that includes a second minor, but exclude all images of (a) the girl (or boy) herself (or himself) alone; or (b) the girl (or boy) engaged in sexual conduct with an adult?

  4. Thomas
    Posted March 26, 2009 at 1:59 pm | Permalink

    I can usually type without such terrible typos, really I can.

  5. kb
    Posted March 26, 2009 at 2:02 pm | Permalink

    while I think you’re take is spot on for sending pictures of oneself, what about forwarding on the pictures? I don’t know that I do think that is so harmless and under the person’s own control. Should the rules be different for texting a picture of someone else, most especially without their knowledge? what should they be?

  6. Thomas
    Posted March 26, 2009 at 2:04 pm | Permalink

    I want a culture that allows young women to figure out their sexuality for themselves according to their own desires, and neither pressures them to make themselves available as objects for consumption, nor punishes them for expressing themselves.

  7. Thomas
    Posted March 26, 2009 at 2:06 pm | Permalink

    KB, I think what one does with pictures of others is absolutely different. I’m skeptical that it is the kind of conduct we mean to punish with child porn laws; but that is predatory conduct. What one does with one’s own image is, I think, a special category where any criminalization is a horrible injustice.

  8. Ros
    Posted March 26, 2009 at 2:06 pm | Permalink

    Yes. Exactly that.

  9. Cory
    Posted March 26, 2009 at 2:22 pm | Permalink

    Again… It’s girls who are penalized. How many anonymous underage dicks are floating on the internet?

  10. Mirandy
    Posted March 26, 2009 at 2:23 pm | Permalink

    i love this… thank you, very well said!!

  11. Thomas
    Posted March 26, 2009 at 2:29 pm | Permalink

    Here’s my first crack at a stutory excemption; a new subparagraph (d) to 18 USC 2252, after the affirmative defense in sub (c), which covers people who run across child porn accidentally and report it.
    “(d) Notwithstanding the foregoing, no person shall have committed a criminal act within the meaning of this section solely by reason of having possessed, transported, shipped, or received a visual depiction wherein the person himself or herself is the only minor depicted.”

  12. crshark
    Posted March 26, 2009 at 2:45 pm | Permalink

    Great Post, Thomas, thanks. I had a couple of questions. Even if the young women are charged with child pornography, wouldn’t they charged as juveniles and thus be subjected to the jurisdiction of the Pa Youth Authority (or whatever it’s called)? I.e., wouldn’t their “crimes” be under seal and expunged if they successfully complete the YA’s jurisdictional mandates? Or is there some exception for child pornography violations.
    Also, this particular case doesn’t seem very difficult to defend because the photographs clearly do not meet the definition of child pornography, which is defined as images depicting, “sexual intercourse…., masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” The idiot prosecutor, who sounds like a total creep, told the girls’ parents that he would prosecute any girl, even if they were photographed wearing bathing suits, if he thought the photographs were “provocative” in his sweaty little mind.
    But what about photographs that do meet the above definition of pornography? What should be done to minors who distribute such images?

  13. Brianna G
    Posted March 26, 2009 at 2:46 pm | Permalink

    I definitely agree there should be no sex crime charges for the girls who take the pictures or the people who she sends it to, provided those people are in her same age bracket and there’s no evidence she’s being abused.
    However, at the same time, I think that they should still have some form of deterrent for the girls, who may not fully understand the consequences of their actions, and for the people who may keep . I like the idea of having a court-ordered class on internet and phone safety for girls who do it, to teach them about potential risks of their actions, and maybe one about sexual exploitation and teenagers for anyone who received it and kept it on their phone, rather than immediately deleting it. That would help teach those involved as to why that particular expression of sexuality is a bad idea and could hurt the girl involved, but not actually elevate it to the extreme levels used by prosecutors. Standing before a judge and spending a few hours in a classroom won’t destroy their lives, and it may help them understand that pictures, once distributed, never go away no matter how much you want them to.

  14. dykelawyer
    Posted March 26, 2009 at 2:57 pm | Permalink

    As I read your exemption, the minor couldn’t be prosecuted, but an adult who took, distributed, or caused the minor to take the picture (video, whatever) would be liable. That sounds perfectly good to me. Of course, then you’d also need the states to adopt the exemption in their own laws (this case involved Pennsylvania law, for example). Or you’d need the Supreme Court to constitutionalize this exemption (for which I think there are colorable arguments).

  15. crshark
    Posted March 26, 2009 at 2:57 pm | Permalink

    What about minors who send it to someone who doesn’t want to receive it? What if a 17 year old male sends a sexually explicit picture of his genitals to a 12 year old girl?

  16. dykelawyer
    Posted March 26, 2009 at 3:02 pm | Permalink

    There are laws for that sort of thing, too, in some circumstances – but they’re not laws based on the fact that the person in the picture was a minor, they’re laws based on the fact that the defendant was actually engaging in some kind of sexual harassment or imposition. The fact that the means they used was a picture, and one of themselves, is not particularly important.

  17. jenjen13
    Posted March 26, 2009 at 3:04 pm | Permalink

    Thank you for your post (and follow-up comments). I could not shout, “Amen!” enough at my computer screen while reading. Seeing this article in the NY Times this morning completely floored me. The part of the article that particularly disturbed me:
    The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.
    Whaaaaat? This is the type of photo we’re talking about? A girl wearing the equivalent of a swimsuit top, with her girlfriends, at a slumber party. What sicko decided that photo was provocative? Is the prosecution going to enter the rest of the birthday party scrapbook into evidence of their “criminal” behavior?
    The girl wasn’t even aware of the photo the prosecution was talking about initially. This is not a case where a young woman had her photo passed around the school by a virtual bully (a completely different situation). This doesn’t involve harassment, shame, or even sexually explicit material. Miley Cyrus has been featured on the covers of magazines wearing less. To be clear: I only think that Miley Cyrus came to regret her photo shoot because of the backlash/slut shamming that followed, not because the pictures were too sexual. BUT I do think that the intent of the Vanity Fair photographer in Cyrus’s case seemed to be much more sexual than pics from a SLUMBER PARTY!!
    @ Brianna G: I do agree that there should be education to all young people about how particular forms of self-expression can come back to cause harm, but I disagree that this should be court ordered.
    Sending a suggestive text message to your future creepy ex, while a mistake, shouldn’t require a teen to undergo court ordered penalties. Online/Virtual safety should be taught in schools/homes/everywhere BEFORE these issues arise forcing courts to decide who to blame and how to punish them.

  18. Thomas
    Posted March 26, 2009 at 3:09 pm | Permalink

    It’s only an exemption from the federal child porn statute. Harassing someone with unwanted porn potentially violates other statutes. In some states, for example, that’s probably Contributing to the Delinquency of a Minor.

  19. Thomas
    Posted March 26, 2009 at 3:13 pm | Permalink

    I didn’t want to get lost in the particular case because I was really talking about the trend, but I thought it was pretty clearly a bullshit idle threat given the nature of the material. As far as juvenile charges, one can’t take that for granted anymore. I’m shocked at how quickly teens get tossed into the adult criminal justice system. I’m no expert on sex offender registration, but I think a lot of the requirements apply to convictions for conduct by minors.

  20. Thomas
    Posted March 26, 2009 at 3:20 pm | Permalink

    Another thought: we live in a nation where, for decades, vocal pressure groups have been shouting about sex education that it shouldn’t include any actual information, because that’s the parents’ job. But here we have a situation where having the powers-that-be do it is destroying the girls, and they seem to be shouting, “this can’t be left up to the parents!” This is exactly what ought to be left up to the parents. The approriate way to handle kids sending explicit photos of themselves around is to ground them and take away their cell phones for a week. Assholes sending those photos around are a more serious problem, one that might even be a criminal justice matter at the margins, but this damned sure does not warrant the same kind of treatment we give to adults who molest children and then trade the pix.

  21. Arium
    Posted March 26, 2009 at 3:22 pm | Permalink

    Earlier today I came across a blog post on a right-wing website with a theme similar to this sarcastic comment. The message seems to be if we don’t punish the teens for sharing nude pictures of themselves, whether by a) prosecuting them for child pornography, or b) turning a blind eye to bullying in case the pictures circulate, then we “empower young women who happen to be teens to post naked pictures of themselves.”
    (The post I mentioned related to an 18 year old high school senior whose boyfriend circulated a nude photo she’d sent to him. After being bombarded with taunts such as slut, porn queen, and whore, the girl committed suicide. The news story is here. Acording to the poster, school officials were focusing too much on the bullying, and not enough on the behavior of the victim.)

  22. Thomas
    Posted March 26, 2009 at 3:31 pm | Permalink

    Arium, I discuss Jessie Logan’s story in the post. Thanks for the link.

  23. kb
    Posted March 26, 2009 at 3:35 pm | Permalink

    well, and the way you’ve said it above sounds like what I’d go for-if you’re the person in the picture, you can send it to whomever you want. yes. absolutely. sending other people pictures that they don’t want is harassment. and, giving the specific language in this (proposed?) exemption, sending a picture of another person without their consent sounds like it would be punishable, which I think is important. so really, we agree about the special category. though I was under the impression that these laws were supposed to prevent both.

  24. Thomas
    Posted March 26, 2009 at 4:29 pm | Permalink

    Update: Everyone is covering this topic today, and a 14-year old girl in NJ had been charged with child porn for posting nude photos of herself. A Kos diarist has the scoop. H/t Atrios.

  25. AnatomyFightSong
    Posted March 26, 2009 at 6:30 pm | Permalink

    Right now, the TVGuide.com home page has a photo of the Gossip Girl Rolling Stone cover (discussed here yesterday) with the caption “Watch the Gossip girls lick some balls… of ice cream for Rolling Stone.”
    Holy fucked-up mixed messages, Batman!

  26. dystopia04
    Posted March 26, 2009 at 6:43 pm | Permalink

    whether you view teenagers as children or not, since when did it become the law to charge the “children” victimized by child pornography with crimes against themselves? also, i am pretty sure that the legal age of consent is 16.

  27. MissKittyFantastico
    Posted March 26, 2009 at 6:51 pm | Permalink

    The age of consent is different in different states. For instance, in California its 18 with no exception for people close in age. In some states its 16 with an exception for couples that are within two years of age. Etc. There is no national age of consent.
    The logic behind charging the “children” (which I don’t agree with) is that they’re the ones who took the pictures. I think its ridiculous though.

  28. Aviva
    Posted March 26, 2009 at 6:59 pm | Permalink

    “As far as juvenile charges, one can’t take that for granted anymore. I’m shocked at how quickly teens get tossed into the adult criminal justice system.”
    A particular irony in these cases given that they’re being prosecuted for abuse of themselves as a minor.

  29. dystopia04
    Posted March 26, 2009 at 7:30 pm | Permalink

    ahhh, that must be what it is in my state then, cause that’s all i’ve ever heard.

  30. Brianna G
    Posted March 26, 2009 at 7:36 pm | Permalink

    Whoa, whoa, I thought we were talking nude shots! That’s absurd, they could wear a swimsuit top less revealing than the average bra!

  31. Doug S.
    Posted March 26, 2009 at 9:50 pm | Permalink

    As written, that exempts the person who took the photos, but not the other person of the same age who received them.

  32. South
    Posted March 27, 2009 at 8:25 am | Permalink

    You know MRAs feel pretty much exactly the same way on this issue. It’s nice to know there’s at least some common ground.

  33. TalkToMeNow
    Posted March 27, 2009 at 10:12 am | Permalink

    I do apologize for being slightly off topic, but I feel compelled to share that I find this sentence, and most of the following paragraph, troubling:
    “If she’s middle-class and white she probably had college aspirations which are now gone”
    To me, the paragraph makes it sound like young white women face one set of problems- college aspirations, being able to get a job “even” as a secretary or receptionist, living at home- and young women of color will mostly have to worry about this adding to their burgeoning criminal records.
    While I am certainly not trying to say that the criminal justice system is color blind, I do feel that the phrasing used perpetuates untrue stereotypes of young black and latina women and flaws an otherwise excellent piece.

  34. Thomas
    Posted March 27, 2009 at 10:52 am | Permalink

    Yeah, I think I wrote that badly and it came out wrong. I was trying to get at that the ways it might or will impact her depend on her social circumstances, but it’s bad across the board; and that black and latina women get targeted by law enforcement for nickel-and-dime bullshit more than white women so that having any kind of a record is a major problem for them in a way that is less likely to arise for a white woman.

  35. Quill2006
    Posted March 27, 2009 at 12:26 pm | Permalink

    “Sending a suggestive text message to your future creepy ex, while a mistake, shouldn’t require a teen to undergo court ordered penalties. Online/Virtual safety should be taught in schools/homes/everywhere BEFORE these issues arise forcing courts to decide who to blame and how to punish them. ”
    It’s happening, slowly. I work in a high school and the non-certified (non-teacher) staff just had the option of going to a talk on teen cyber bullying and issues like this during our last institute day. Since then, the library staff has started planning programs for teens and parents and incorporating issues like this into the curriculum.
    Unfortunately, I don’t think it occurs to most adults that this would be an issue, so it isn’t discussed much yet. Articles like the one in the NYT at least bring attention to how these laws can be interpreted.
    So why haven’t there been threatened prosecutions for this in the past 25 years? Teens have been able to take sexual pictures of themselves and share them with others for years; it’s only now that they can easily be forwarded on to everyone that it’s child pornography? I don’t think so. The problem really is that the pictures are easily forwarded to anyone without the teen’s knowledge.

  36. Vio
    Posted March 28, 2009 at 7:16 am | Permalink

    What ever happened to grounding, suspension of privilages (say phone and internet) and good long talk with mom and dad? I really don’t think criminal court is the appropriate setting for disciplining teens that engage in this sort of behavior. And if teens are sending picture of themselves in swimsuits or the equivalent there of who the heck cares? Anyone can go to the beach or pool during the summer, see all the half naked underage teens, and there’s nothing illegal about that. We need to stop thinking of sex as something dirty, and relise that it’s a natural part of growing up that teens have sexual feelings. Responsible factual sex ed can go a long way towards helping teens have deal with sex in a responsible manner. A bit of education in online safety wouldn’t hurt in these teens cases either.

  37. jdv1984
    Posted March 28, 2009 at 4:04 pm | Permalink

    The Supreme Court of Canada has already read-in such an exemption to Canada’s laws against child pornography.
    As a lawyer, you may be interested in checking out R. v. Sharpe 2001 SCC 2. (You should be able to find it easily at http://www.canlii.org) The exemption is at paragraphs 115-116.
    But then, the SCC tends to be awesome like that.

  38. markweee
    Posted September 26, 2009 at 1:00 am | Permalink

    First, because Rachel Alexandra’s original owner did not believe in racing fillies against colts, his decision not to enter her in the Kentucky Derby robbed horse racing of its best chance to have a Triple Crown winner in the last 31 years, a title no filly has ever claimed. computer school AND doctorate degree

  39. markweee
    Posted September 26, 2009 at 1:01 am | Permalink

    I am usually weary of the celebratory lauding of fillies’s success, because I feel these stories distract from more substantive gender bias among the humans of horse racing–namely, how the sport is dominated by male jockeys and trainers, despite the fact that women are actually better suited to the physical requirements of the former, and equally qualified for the latter, although in this case, this bias overlaps business degree AND online Nursing degree AND Science Degree

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