Teenage years are for experimenting, and doing ‘stuff’ that’s blush-making years later.
But the elephantine web remembers peccadillos: should young people already blighting their futures with reveal-all photos also face a criminal penalty? Melanie Persinger questions the big stick approach.
Criminality for phone self-portraits: more harm than good
By Melanie Persinger, associate editor of the Michigan Telecommunications and Technology Law Review
As new technologies become part of our lives, teenagers figure out a way to use these technologies to do what it is they do best: get themselves into trouble.
Mobile phones and picture messaging are no exception.
In late 2008, a 15-year-old girl in Ohio USA was arrested for taking nude photographs of herself and sending them to other minors. The teenager was charged with illegal use of a minor in nudity-oriented materials and possession of criminal tools under Ohio law 2907.323(A)(3).
The charges could also qualify the girl to be classified as a sex offender, requiring her to register annually. An Ohio prosecutor, Ken Oswalt, said that the other minors who received the photographs might also be charged for possession of child pornography.
The Ohio case was recently settled out of court, and the young woman in that case will not have to register as a sex offender. But the law at issue was Ohio’s version of Megan’s law, which has been enacted, with slight variations, in all 50 US states and the District of Columbia. This means that a similar case could potentially come up anywhere in the USA.
In fact, the case in Ohio is by no means the first instance of a minor being faced with criminal charges for taking and sending, or posting online, nude photographs of themselves. According to Fox News: “Similar cases have been reported in New Jersey, New York, Alabama, Utah, Pennsylvania, Texas and Connecticut.” Michigan and Florida have also seen similar cases.
Because this is a growing trend, it is important to ask ourselves if criminal charges are the appropriate way to deal with these teenagers’ misconduct.
The aim of laws of this type (preventing sexual offenses against minors) is to prevent harm to the child. Proponents of the law in issue argue that this means protecting children from harm they could cause to themselves in addition to protecting them against harm caused by others.
While the current US law does this to a certain extent, it is also overly broad in that it imposes a different, and arguably worse, harm on the minor.
It is true that once the photographs become public, they will likely haunt the teenager forever or could possibly end up in the hands of adults who are looking for child pornography, both of which are harms that we should be concerned about. However, imposing criminal charges will not undo the fact that the photograph(s) are now out in public.
Additionally, imposing criminal charges, especially requiring the minor to register as a sex offender, is also likely to haunt them forever. It is hard to see how preventing harm to minors justifies imposing other harms on them: the stigma of a criminal record and being labeled as a sex offender.