In all western societies, child pornography is synonymous with child sexual abuse. The topic cuts across the field of rational debate and emotionally cripples men of reason. Not much is certain about it except that it does irrevocable harms to children – or the belief of this – and needs to be controlled. Both the media and public condemn it as wicked and sickening; legislators see it contingent to child abuse (Ost 451).
In spite of all this, there is little elucidation to these harms beyond the axiomatic “it exploits children”. The connection between harm an child pornography is unclear, the explanations are scant, and many of the claims “beggar credulity” (Slade 39). The lack of empirical data further makes it difficult to confront these issues without resorting to purely academic discourse and speculation, which, for the most part, have driven the child pornography law we know today.
Around 2007, the prosecution of juvenile offenders began to attract to the public’s attention, namely that their application of “traditional” child pornography statutes is inappropriate. However, the argument is strictly age-based, restricted to adolescents, while adult offenders continue to receive “Draconian punishments” (Catudal 105) for the same crimes. Thus we see a major departure from, and even contradiction in, such claims as the one made in New York v. Ferber that the production of child pornography must depend on the abuse, and thus harm, of a child – that a child performing sexual acts on camera, whatever the circumstances, is act of abuse (1982).
The formulaic inculpation for adult, but not juvenile, offenders also may suggest a deeper interior in the legal framework that hides behind “the notion of material ‘harmful to minors’” (Catudal 115) to excise socially unacceptable behaviors, and ultimately challenges our whole understanding of the harm done by child pornography, particularly in its production. As such, public policy being driven by mere speculation and the “mass hysteria” (Adler 229) against child prurience becomes a concern in contemporary discourse.
CHILDREN AS CULTURAL ICONS
For child pornography, the label of abuse is forged onto depictions of acts that are “sexually explicit”, which, under U.S. law, means any of the following: sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area (18 USC 2256, 2008). “Child pornography . . . is not pornography in any real sense: simply the evidence – recorded on film or video-tape – of serious sexual assaults on young children” says one critic (Tate cited through king). By defining child pornography as strictly abusive depictions of children, the harm factor is internalized without the needed addendum of proof. This begs the very fundamental question of what makes any or all of the acts enlisted in the US Code abusive, besides the tautology that says child eroticism is a form of abuse.
For adults, consent is the preemptor to all psychological harm that may be otherwise brought on from sexual activity. When it comes to child-adult relations, the question is immaterial. No appeal is made to what the child feels, if he or she has indeed consented, or wishes to engage in sexual acts. Instead we assume that sexual activity involving children can never be consensual (King 331). The Attorney General’s Commission on Pornography, Final Report explains the exception to the First Amendment that child pornography brings writing that the acts being depicted are “inherently nonconsensual” (Final Report 411). In the words of Eva Klain:
“Child victims of pornography face the possibility of a lifetime of victimization because the pornography can be distributed indefinitely. Physical, psychological, and emotional effects of child sexual abuse are coupled with the possibility of the pornography resurfacing. Being photographed during sexual abuse intensifies the child’s shame, humiliation, and powerlessness. In addition children tend to blame themselves for their involvement in pornography, and this makes the experiences that much more painful.”
But pornographic depictions cover a range of things, which do not necessarily lead to shame, humiliation and powerlessness. It could be persons having sex, posing nude, being raped, masturbating, etc. Yet what do most people think of when they hear of child pornography? Always they think of child rape or some other non-consensual activity taking place. Child pornography is never a 15-year old taking a topless photo of herself and sending it to her boyfriend as an act of endearment. It is always, a 40-year old man having sex with 2-year olds, prepubescent children being sexually exploited as a foster father makes thousands or millions of dollars trading pictures of her with other child molesters. Or in Larry Walters’ view “a pedophile forcing a toddler to perform a sex act on camera.” They are these such images that propagate an adulterated version of the truth and maintain status quo in the mass that any opinion of the contrary is so adversely unfit to withstand the assault of the majority.
The real problem is that the law currently makes the sweeping decree that any individual under age 18 is a “child.” Non-consent is nowhere mentioned in the provisions detailing what is legally considered “child sexual exploitation”, only that an adult use a minor engaging in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct” (18 USC 2251, 2008). The law tells us nothing about if an individual of certain age is capable of consenting; only that we believe they can’t consent or shouldn’t. But does this make sense?
Bruce Rind, former professor of psychology at Temple University, argues that adolescents are both physically and mentally closer to adults than to children and should be treated thus. He cites much empirical evidence to show that adolescents may be fully capable, or at least more so than pre-pubescent children, of safely consenting to sexual activities with adults. For example, he points out that nearly all studies have shown adolescent boys have reacted very positively to sex with adult women, contrary to what the law assumes, though his data was clearly restricted to male adolescents.
It is not clear to me either how designating every teenager as a “child” is supposed to help protect them from sexual abuse. If the law’s aim really is to protect, it makes a huge miscalculation on what the adolescent is capable of nowadays. According to a national survey done in 2007, 48 percent of high school students reported having had sexual intercourse (CDC) at least once. Another study finds that 73 percent of adolescents, had seen online pornography before reaching adulthood, mostly between the ages of 12 to 15 (Sabina 691). It is very well possible that behind child exploitation laws there is the ulterior purpose of targeting simply those behaviors society has deemed objectionable for some reason, though legislators would not admit it.
To most Americans, age of consent is a sacred, inviolable line segregating the two morally immiscible domains of adult and adolescent sexuality. Adolescents and adults play in their own sexual “playgrounds” and transgression into the forbidden zone is generally not tolerated. Again these laws are only restrictive of adult-child sexual relations, not child-child or adult-adult. For example, California does not prohibit adolescents from lawfully having sexual intercourse with other adolescents so long as they are within a reasonable age difference, generally three years (9 CA PC 261).
But children don’t suddenly become adults overnight on their 18th birthday (Gillespie 113). And a 17-year-old may very well likely be within the full capacity to consent to sexual activities. Conversely an 18-year-old may not. A simple difference of age does not necessarily, let alone efficiently, indicate one’s ability to make informed decisions about sex. As Sari Leanne Kives points out “. . . such a legal framework correlates a person’s decisional capacity with chronological age rather than with their maturity level” (49).
Whether parents want to admit or not, our perception of the “innocent” child plays a very strong role in the drive to eliminate distasteful images of them, and this is reflective in the law. For example, 80 percent of Americans believe a prison or jail sentence is most appropriate to indecent exposure to a child while only 46 percent say the same for indecent exposure to an adult (Mears 546).
Being overly protective of the ideals we hold children to represent risks doing them further harm by reducing them to icons of innocence or chastity (Ost 457-458). The provisions intended to combat pedophilia thus have the inadvertent effect of telling children they ought to be ashamed of their bodies and imprisoning us in a society more reflective of puritanical values. In that case, the law is counterproductive, rather than beneficial.
A better standard would be ideally one that protects children without impeding on the freedom of those who are capable of consent, and we have come to accept a general flaw in the legal system that this can’t be done. However, denying the 17-year-old the right to consent to sexual activities, or pose in pornographic pictures, whatever the reason, in the interest of protecting the 7-year-old from a pedophile is overkill. This is an area that needs improvement.
PEDOPHILIA AND MORAL PANIC
Beneath all the legal humbug, there’s a base moral objection that infects the rational mind. Moral panic has reduced our libertarian society into a caucus of pedophile-haters. In 2006, child protection became a “national priority” (Sher). Mainstream aversion to child sexual exploitation and pedophilia continues to fuel campaigns for tougher laws. For example, Americans are “split evenly on using the death penalty for convicted rapists, and by more than a 2:1 margin support[s] its use for those who sexually molest a child” (Cullen cited through Mears), whereas for juvenile delinquents and offenders, 90% support prevention and rehabilitation measures rather than imprisonment (Soler).
A kind of “Dirty Harry Syndrome” takes over as soon as children are on the line where instead of kicking down doors and denying medical attention, we channel hatred on so-called “sexual predators” and deny them basic First Amendment rights. Pedophiles are the only ones of the law exempt from the “innocent until proven guilty” right normally afforded to criminals. In our eagerness to cast the blame, too many times we “shoot the bastard” prematurely. Take Jack Mcclellan, dubbed “the innocent pedophile” (LA Times) in 2009. How does the public respond to the admittedly disturbing act of taking pictures of children in public view and posting them on a website as a substitute for real child pornography? By calling down restraining orders, national vigilantes, and more controversial laws that brush up on free speech rights, not to mention, nationwide hysteria all because of this one “dangerous animal.” Numerous “Anti-Mcclellan” websites, typically by hyperreactive parents, have since spawned in ferocious opposition on the grounds that such men are “endanger[ing] the lives of many children” and “teaching other pedophiles how to hunt down and attract their prey” (Nilson).
These are nothing but phantom deductions stemming from an area of the law that is commandeered by mob mentality force and faulty syllogisms. By what we know, it’s not clear exactly how Mcclellan is endangering the lives of children, considering he has never been convicted of molesting a child whether he is indeed “hunting” or even “attracting” children. Parents see him as a threat to their children when evidence suggests the contrary. In response to Mcclellan’s doings, California recently passed the Surrogate Stalker Act, which makes it a misdemeanor to “[publish] photos, physical descriptions, and/or locations of children with the intent that another person uses that information to commit a crime against a child” (Smyth). Here’s what talk show host Steve Wilkos asks Mcclellan appearing on his show (booing can be heard as Mcclellan approaches the stage):
“A child can’t really give consent. They’re – they’re children. They don’t have the uh, you know, in their head to know what’s going on to give that consent, and . . . we have story after story up here Jack that these young kids that when they were younger they get molested and they have – dealing with problems with the rest of their life, serious problems because of what somebody did to them when they were a child”
“I don’t know, like I said, I’m wrestling with this in my head. I think there’s a difference between older pre-pubescent girls and the really young ones. I mean I think the older one maybe nine, ten, you know, eleven, umm, they’re more mature – (bleeped expletives can be heard coming the audience)”
Also consider the statement made from one audience member:
“I am an adult victim of a pedophile and I am absolutely disgusted. First of all, first of all I can’t get over your outfit. I mean is this what (audience cheering) is this what, is this what you wear to charm children. You ruin lives. Well what happened to me, you’re repeating it. You’re doing it to other children. I don’t believe for a second that you refrain or you restrain or whatever. I believe that you have done stuff. You’re probably not wanting to admit it because you are on television and cops are looking at you and whatever but there’s no question in my mind that you probably have done something and certainly do want to do something okay? And let me tell you something, little girls ages three to eleven do not find you hot they do not want to be touched, they don’t like how you smell, they don’t like how you look, they don’t like how you feel, and it’s not consensual, okay? (audience cheering)”
During her speech, she was getting noticeably angrier. Wilkos and the audience member, as well as countless others, believe that children cannot give consent to sexual activities. In the context of the Wilkos Show, this raises a problem as it is not clear what is meant by “children”, if referring to actual children (prepubescent) or a “minor”, meaning anyone under age eighteen. Certainly nine, ten and eleven year olds are not as competent to make decisions regarding sex as older kids, say, in their late teens.
But if certain teens are already sexually autonomous, doesn’t this suggest that older adolescents are capable of consenting? Ultimately, what it all boils down to is societal view toward the act of sex as a “harmful” activity in itself, and one has to ask, what’s so bad about sex in the first place? Are we really protecting children from something they don’t want, or something we think they don’t want?
Pedophiles come from all walks of life. They can be educators, lawyers, public officials, family men, musicians, athletes, and many more. Getting arrested on child pornography offenses triggers all kinds of never-before-felt emotions by acquaintances. But surely friends and family don’t believe these seemingly good people suddenly become sociopaths once they are revealed or simply insinuated to be pedophiles (Hunter 350-351)?
Unfortunately, the public has found it more sensible, more delectable, or maybe just easier to scapegoat the pedophile for the child sexual abuse panic. Upon discovering that her neighbor, middle school teacher James Chase, was arrested for downloading child pornography, Kari Brown says, “He always kind of seemed a little creepy like he didn’t talk much . . . he just like stared.” She adds. “. . . he has kids and I hope it wasn’t them ‘cause you know that could like haunt a kid, traumatize ‘em for life.” There is noticeably a huge gap between attitudes toward users of pornography and users of child pornography.
The public seems to think a child pornography offense is a strong indicator of a potential abuser. But no one accuses a man of intent to commit rape just for having looked at pornographic pictures of women. What can explain this bias?
Perhaps that we think children need an extra layer of protection from adults related to the consent argument as made before. It may also have partly to do with how we define child abuse in the first place. Remember, what is considered sexually appropriate behavior between consenting adults does not always hold parallel to children. An adult may look at adult pornography, be compelled to seduce a woman thereafter, and it would be completely legal so long as there is no indication of non-consent. He may even manipulate, bait, trick, or groom her into having sexual intercourse; it would still be legally acceptable. Doing any of these things to a child by an adult is automatically an instance of sexual abuse and/or statutory rape, except where provided for under due process, as in the penal code of California. The standards are stricter, the provisions are more expansive for children than for adults. Thus, under the assumption that child pornography may influence the user to seek real children for further sexual gratification, the law attempts to segregate sexual contact between the two age groups.
The fear is largely intuitive and research is lacking in this area. The statistics are both scattered and unsubstantial. Sometimes they appear out of thin air, and sometimes they start as rumors that, given the passage of time, become accepted as true (Hunter 21). A study of 39 pedophiles in an outpatient clinic finds that 55 percent of them had downloaded child pornography but only 34 percent had attempted to meet with a minor in person using the internet (Galbreath cited through Seto 325). According to the U.S. Postal Inspection Service, about one-third of the . . . people it has arrested since 1997 on child exploitation charges . . . also committed ‘contact offenses’ against children (Markon). Yet, of 155 federal inmates in North Carolina convicted on child pornography charges, “85 percent admitted molesting children” (Markon). While some of these findings strongly suggest that pornography usage is a factor in child molesting, many critics warn us how easily one may interpret them as basis for causal relationship. According to David Wheeler, determining such a relationship is almost impossible:
To suggest that pornography usage “causes” sexual offenses would present a number of problems. One would have to administer pornographic materials to randomly selected subjects and monitor their behavior over a long period of time. Even then it would be very difficult to assure accurate monitoring of their behavior and such a method would raise serious legal and ethical issues (4-5)
And indeed the extent that availability of child pornography leads to or encourages child sexual abuse remains unknown (Jenkins cited through Mears 553), and something legislators are reluctant to find out. Despite this problem, many laws have been passed on this very basis. The fear that pedophiles may use child pornography to further molest children is a rationale used before the Supreme Court to justify governmental regulation on pseudo-child pornography (computer-generated or Lolita genre), in Ashcroft v. Free Speech Coalition (2003). When asked why banning images according to the 1996 CPPA that not only use real minors, but those that merely appear to use minors would not present the problem of having to ban other material that “can have a very bad effect on the viewer”, Attorney General Paul Clement had this to say:
. . . This Court already put one foot down that slope in Osborne when it relied on the seduction rationale in conjunction with the concern for the children who were depicted. And in the same way this statute responds both to harm, potential harm, to other children in the seduction rationale and to children actually depicted because as a matter of practical reality it’s become very difficult for the government to prosecute cases involving actual, traditional child pornography. (Oyez)
What Clement tells us is two reasons why pseudo-child pornography is sufficiently harmful to warrant regulation. One is the “seduction rationale” and the other is that banning such material will relieve prosecutors, especially in the age where computer graphics are becoming more and more convincing, of the burden of having to distinguish those depictions that use real minors and those that don’t. The “seduction rationale” refers to a scenario in which a pedophile may show a child pornographic image to other children to “trick” or “groom” them into thinking that the activity depicted is normal for their age. Both these puts in flagrant display the question if legislators have an underlying motive to ban merely distasteful images (Williams 257) using the “protection of children” as a constitutional shield. First, as noted before, the foremost problem is that there simply is no causal link between child pornography and child molesting, the presence of which would significantly strengthen Clement’s argument. Even if we can assume a pedophile uses the material to further molest children. But that’s illegal anyway. A law making illegal certain images, otherwise harmless, simply because those images may be used to accomplish something that is already illegal would be redundant (Catudal 114). By this logic, guns would have to be illegalized since their availability leads people to be murdered, and so would pornography since its availability leads women to be raped, and so forth.
Another problem noted by Jacques Catudal is that child pornography seems to be the only type of material that “looses [constitutional] protection when its effect is to cause children to be sexually abused” (112). This raises a serious question concerning First Amendment issues – how does one unequivocally define pornography? Justice Potter’s “I know it when I see it” motto may apply easily when it comes to differentiating between Girls Gone Wild and “David”, but not all cases are like that. Consider a video of junior gymnastics showing 10-year-old girls in body-tight leotards. If a pedophile uses it to “whet his appetites” does it become child pornographic and thus lose constitutional protection (King 331)? In the same way, certainly other types of material may have negative effects on their viewers, including pornography in general. Wheeler’s study finds that out of 150 child molesters, 58 admitted they had used adult, not child, pornography prior to committing an illegal sex act on a child (115), although child molesters tended to believe that child pornography had helped them relieve their sexual tensions, not whet them.
In fact, the only reason the CPPA was struck down in Ashcroft was because the provisions in the statute was “overbroad and vague” (Cornell), particularly the one that bans images that “is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct” (Catudal 108). As the Justices noted, this could potentially block “in the name of protecting children all visual messages of adolescent sexuality” (Oyez) depictions that are constitutionally protected (those that pass the Miller Test) including one movie Titanic, which makes use of a 17-year-old character (though played by an adult) in sexually explicit conduct.
THE EMERGENCE OF JUVENILE OFFENDERS
The notion of child abuse through pornography is a recent invention dating back to the 1970s (Finkelhor cited through Adler 218). By contrast, self-produced child pornography, mostly in the form of sexting, and similar type cases have caught media and public sensation only within the past few years, though adolescents have been charged with child pornography offenses as far back as 1985. During this time, media coverage on juvenile offenders was both scant and uncritical, and criticism of the law was virtually nonexistent (so far as I can tell).
Typing in “sexting” in Google Trends shows public interest only as far back as mid-2008. In March 2004, Associated Press reported a 15-year-old girl in Pittsburg arrested for “possession. . . and dissemination of child pornography” as well as the “sexual abuse of children” for sending nude photos of herself to people she met in a chatroom. There was no mention of what happened to her, or her parents’ reactions. Other cases include a 17-year-old boy charged with the misdemeanor of possession and the felony of “attempt[ing] to distribute” child pornography in 2003 (though these images were not self-produced by either his peers or himself); and in 1998 a 14-year-old boy was caught downloading child pornography, police calling it first of its kind. Up till only recently, the press has been complacent with the law, apparently being more concerned with the pedophilia craze.
Then around 2005 and 2007, we began to see these more widely publicized. Headlines became “Crime or teen folly?”, “Parents fight child porn threats against “sexting” teens” and “Teen Girl Faces Felony Porn Charges After Cell Prank”. Public response so changed from general passivity and admonishment to almost complete agreement in that the whole issue is absurd, with one Professor Cumming of New York University arguing that “sexting” is the internet generation’s way of sexual experimentation, claiming that it may provide healthy alternatives to actual risky sexual behavior (Sexting).
An internet search shows googols of news and commentary on the issue. A poll on Newsvine.com was titled “Should teens who sext. . . face child pornography charges?” The results, from 1,532 votes, were nearly 78% “no” as of June 2009 with the rest saying “yes” or “unsure.” One CNN article was even titled “Is ‘sexting’ child pornography?” It is surprising to see this mass reneging of heart coming from a society where the claim that child pornography must indisputably and irrespectively harm its subjects has been so paramount to the legal system for more than two decades.
But now opponents of the law face a serious contretemps. What happened to the argument that child pornography will cause more child abuse? That propagating these types of material feeds a market of criminals? These used to be charges worthy of felonies (and they still are for adults) just as murder and rape are felony charges. Should we lessen the charge of murder if the perpetrator happens to be a minor? One wonders, amid all this pedophile-hating, if there are more grey areas than we would like to admit. Critics need to realize that in excepting adolescents from traditional child pornography charges, the long-standing “tradition” of thinking child pornography “always does or must harm the subject” (Catudal 111) is challenged. Either such material is child pornography or it isn’t – they can’t have it both ways.
Take this typical quotation from an article by Nate Anderson on juvenile offenders of child pornography: “The difference between ‘sexting’ and ‘child pornography’ might seem obvious, but it’s not. Take one common metric for labeling something ‘child porn’—was it produced voluntarily?”
Here, Anderson seems to believe that that violation of consent is one qualifier for something to be child pornographic. He’s wrong. Anything is child pornographic falling under the definition provided by the US code (or the penal code of a certain locality) which is any visual media that “involves the use of a minor engaging in sexually explicit conduct”, where “sexually explicit conduct refers to graphic sexual intercourse, bestiality, masturbation, or “graphic or simulated lascivious exhibition of the genitals or pubic area” (http://www.law.cornell.edu/uscode/18/usc_sec_18_00002256-000-.html). Nowhere to be found in that definition is consent or non-consent.
Anderson in asking the difference between sexting and child pornography may or may not have known that there is none. There is no extenuating that under the current definition. Yet he wants to posit that photographs from sexting consensually produced do not fit the traditional definition of child pornography and are not harmful to children.
But like Anderson, thousands of concerned parents and policy-makers are speaking out against the prosecution of adolescents for child pornography charges, which brings up a serious question: Are the people and policy-makers in concurrence with what current child pornography law means to target? By this I mean do parents, in their support for child pornography law, believe only pubescent children are prohibited from use in pornographic depictions? Or do they really want anyone under 18 to abstain from sexually explicit activity? My own guess is that they really want to prohibit adolescent-adult sexual relations, while allowing adolescent-adolescent sexual relations. Thus the support for harsher penalties for adult child molesters, opposition to the prosecution of sexting.
So what we have here is a division of common opinion. One one side, persons like Klain and Walters view child pornography as necessarily the depiction of child rape, where it is evident that young children are being emotionally and even physically harmed. This fits the definition of traditional child pornography, which, again, by association to child sexual abuse, people uninformatively believe apply to all types. Then there are those like Anderson who acknowledge the existence of a type of child pornography that deviates from tradition, namely self-created child pornography, but continue to oppose traditional kinds on the basis of harms cited by Klain. They like to believe that the legal dilemma on sexting is one derived from the increased accessibility to consumer technologies. It is in part, but it is much more than that. It is merely a symptom of a much bigger malady found in the entire legal infrastructure. Addressing juvenile offenders with the end of permanently fixing child pornography law is like applying a bandaid to a festering wound.
Anderson also seems to believe throughout his article that one difference that maintains the legality of mainstream pornography and the illegality of child pornography is the ability distinguish if they were produced voluntarily. He mentions a problem in a law that attempts to legalize those images self-created by adolscents: “Once it is out of the hands of the minors involved, a sexted image is indistinguishable from any other sexually explicit image of a minor.”
But really, why is this a problem? If the picture was produced voluntarily, no harm was done, period. It doesn’t matter if an adult had anything to do with its creation. Could it be because we cannot always know if a pornographic picture of a minor was produced voluntarily just by looking at it? Well, neither can we always know if a pornographic picture of an adult was produced voluntarily just by looking at it. How come there is no law banning this? Is it not as possible for adults as for adolescents to undergo feelings of shame, humiliation, and powerlessness after having their naked picture either taken or disseminated on the internet without their permission?
The question may still stand that the availability of such material, no matter who produced it and why, “leads to still further harms to minors by whetting the appetites of child sexual abusers” (Catudal 111) and laying more demand in a criminal market. A response would have to depend on what is counted as “harmful”, which depends on what is counted as “child sexual abuse.” We know that teenagers who mingle sexually with each other aren’t automatically child abusers. But adults who do are. Following the logic in the argument, this means that a teenage boy, after viewing a photograph of a nude 15-year-old girl is compelled or influenced to pressure his girlfriend into having sex with him, no harm is done to anyone. On the other hand, if an adult does the same thing, even if no force or manipulative tactic was involved preceding intercourse, he is declared a child abuser, and the girl, a victim. What we have here is a set of laws not so much bent on protecting children, but protecting our image of children.
Our laws seem more to serve the interest of the public, not the interest of the individual child (Levesque 169). We may not like the idea of the promiscuous teenager. But then, what can we really do about it without seeming like hypocrites? After all, every adult was once a teenager and likely felt the flurry of emotions humans naturally get from the opposite sex. We can, and do, punish deviants of the social order. In other words, we “reeducate” those teenagers whose emotions happen to fall on either end of the Gaussian curve. Michael, 17, and two of his friends, pays Patti, 14, to take part in a home-made pornographic movie. A well-meaning security guard discovers the tape and reported it to the police. All four were arrested on child pornography charges. “Many psychologists believe that adults’ reactions even to certifiable sexual abuse can exacerbate the situation for the child, both in the short term and the long term” says Levine (85). Michael had to register as a sex offender and was expelled from school. Patti lost her friends, her job, and ended up flunking and dropping out of school. I’m not convinced that the law had prevented more harm than it caused by its enforcement.
That society feels it necessary to preserve the innocence of children is further demonstrated by the numerous controversies that arise from these young female stars of children oriented audience involved in a racy photo or sex scandal. 15-year-old Miley Cyrus, the star of the popular Disney Channel show Hannah Montana, was reportedly “apologizing to her fans” for having posed “semi-topless” for Vanity-Fair. Vanessa Hudgens, 18, who also apologized to her fans, became the center of national attention after a nude photo of her intended for her then-boyfriend had leaked through the internet. What exactly were these two stars apologizing for?
While many child stars make it to success, though rarely without at least some problems, others face serious consequences from growing up under stardom. “I was among the few to have the good fortune to survive”, writes violinist Jascha Heifetz about his own transition from adolescence to adulthood as a child prodigy. Others like Lindsay Lohan and Macaulay Culkin have been arrested on multiple times on charges of illegal narcotic possession or drunk driving. Drew Barrymore first entered rehabilitation when she was thirteen. Judy Garland, who died of drug overdose just before her 47th birthday, was said to have suffered from “erratic behavior … suicide attempts and heavy drinking” (Morgan). And nearly all who marry, divorce shortly after.
If people are going to argue that children don’t have the mental capacity to make informed decisions about sex at their age, then why not about a fulltime Hollywood career? Adriana Lima was 15 when she was discovered as a supermodel; Kate Moss was 14. What we have here are international recognition as pinup girls, appearing numerous times on the covers of Maxim, Vogue, and Victoria’s Secret, posing in skimpy bikinis for swimsuit catalogs, running down catwalks in designer outfits, appearing in advertisements for Calvin Klein, and all the while, making millions of dollars in the process. This is not something we would normally say a child should handle. What is it about pornography that elicits the ugliness of “exploitation” that a fulltime glamour modeling, acting or singing career does not? It is suggestive of a society that is partial in its taboo of adolescent prurience, but does not wish to confess it.
Child pornography remains a domain of social indecency considered by most Americans to be reprehensible beyond the merit of defense or moral acceptance because of the claims to the harms it causes to both its subjects and society. These claims are varied and seem to resist a holistic application to the law. The rationale for making such material illegal are found to be transparent, and more so with the emergence of juveniles offenders. What we argue as “harmful to children” in child pornography offenses involving adults seems to disintegrate once the offender is a juvenile.
It is noted first that none of these claims are typically articulated beyond the reason that child pornography exploits children, which is in turn, defined to be a form of child sexual abuse that depicts minors engaging in sexually explicit acts. Thus the rationale for harm to subjects depends on the circular premise that child pornography must be child sexual abuse simply because child sexual abuse is child pornography. For those depictions of real children, of real harm, and of real non-consensual acts being committed, it goes without saying state intervention is needed. But what about those images that depict seemingly consensual acts? Is it fair to assume that they are still “inherently nonconsensual” and that sexual abuse is being committed?
I do not doubt that there are types of child pornography in existence that actually harm their subjects. These types predominantly are ones that depict non-consensual sexual activity, which leads to the qualities mentioned by Klain. But non-consensual sexual activity is illegal (and morally incorrect) in all its forms, depicted or not, underage or not. This is what the law ought to target. Pornography is an imprecise term that encompasses the many types of acts depending on the breadth of the scope of “sexual activity.” A blanket ban on a general class of depictions without consideration to the many nuances that qualify its types, the which may or may not harm their subjects, is either a lazy move by policy-makers or a disingenuous way to conserve our moral standards under the pretense of protecting children.
We have begun to break from the belief that harm is necessarily done in the production of child pornography when the producer happens to be another child, and certainly we have acknowledged their ability to consent safely to sexual relations amongst themselves. The binary view that adult-child relations are abusive and child-child relations are not abusive is challenged when we consider that our age of majority is only geographically dependent, not absolutely. One may go to one part of Europe and find that its citizens are adults at 16.
As for the reason that child pornography may harm society by furthering child abuse, it is difficult, if not impossible to confirm that child pornography actually causes its users to molest children, though it may be a factor (Wheeler). As Wheeler’s study points out, most child molesters reported having been exposed to adult pornography, with very minimal exposure to child pornography, mostly during adulthood. This suggests that it is no less reasonable to believe that the availability of child pornography influences its users to molest children than the availability of adult pornography does, and that the user’s preference for children had developed prior to child pornography usage.
The seduction rationale seems transparent in the light that we have no evidence to rightfully say one way or the other. Then is the fear that such a scenario will occur enough to warrant legislation? It does not seem to me characteristic of a free state to ban images on the basis of mere speculation, as this leads to a slippery slope precedence for banning other distasteful objects or ideas using the fear that they “harm” society as a rationale. Still the statistic given in Ost’s article indicates that most pedophiles do not use child pornography for this purpose. And even then a law making illegal such an act would tackle the issue head on (Catudal 112). Instead, Legislators have chosen to ban them altogether.
There is unmistakably a moral drive to stamp out images that seem objectionable to us – more so than we would admit – and a mass hysteria concerning the public’s awareness of pedophilia as a threat child welfare. That we consider the innocence of a child as sacred is demonstrated by the fact that we favor harsh punishments to those who would defile that image, even for relatively minor offenses such as indecent exposure, while simultaneously favoring more forgiving, “child-friendly” measures to juvenile offenders, such as rehabilitation, lessened sentences, and parole. Amid the thrill of all this “child-saving” spirit, the law has “diverted millions of taxpayer dollars from real child welfare and created an atmosphere of puritanical surveillance over all U.S. citizens in the dubious name of catching a small number of people who, if left alone, might do nothing more harmful … than sit around and masturbate to pictures of ten-year-olds in bathing suits” (Levine 41 – 42).
Society also feels the need to segregate sexualities between adults and minors – or commonly dubbed “children.” We have seen a massive rise in public concern for the issue of adolescents sending each other pornographic pictures of themselves through the internet and mobile devices. Criticism has largely dealt with prosecutors eager to apply traditional child pornography laws on sexting teens. This is a huge departure from the public’s once paramount view that child pornography is undeniably wicked, evil, and must be eliminated at all costs. One surprising feature in the law is that while lawful sexual activity between adolescents of certain age range is generally not prosecuted, taking pictures is. Here’s a blatant inconsistency in the law as Gillespie notes “it is absurd to have a situation where it is less serious for two teenagers to have sexual intercourse . . . than it is to take a topless picture” (Gillespie 120). It boils down to the problem in how we define children. Adolescents are not children, as Rind argues. They are sexually aware individuals and should be afforded more autonomy in their ability to make decisions about the matter.
Then are we protecting children, or are we combating what we feel is slowly causing a moral decay in our society? What we need is to break from this witch hunt for pedophiles, and adopt a more objective approach on how to protect children from hard evidence, not speculation or fear. Legislators need to think hard about what really is objectionable about child pornography, if it’s actually children that are being threatened or simply certain social norms being challenged. Amid the public and legislators’ religious crusade against child sexual abuse and pedophilia, it is not surprising that this question has been largely ignored up to this point in the making of public policy and laws.
In closing, the dominant message of impartment is child pornography should not be a crime because it depicts underage sexual activity. It should be a crime because it depicts non-consensual sexual activity, the which should extend to all pornographic depictions, not just underage ones since not all depictions of underage sex or prurience must be or always are non-consensual. Pretending that all children will be harmed by depictions of prurience, no matter what the circumstances, or pretending that all adult-adolescent sexual relations must or will always be traumatic to the adolescent is both rationally and prudentially unacceptable.
Adler, Amy. “The Perverse Law of Child Pornography.” Columbia Law Review 101.2 (March 2001): 209. Academic Search Complete. EBSCO. Davidson Library, Santa Barbara, CA. 19 June 2009 <http:// search.epnet.com>.
Attorney General’s Commission. Attorney General’s Commission on Child Pornography: Final Report. Washington DC: US Governmental Printing Office, 1986.
Catudal, Jacques N. “Censorship, the Internet, and the child pornography law of 1996: A critique.” Ethics and Information Technology 1.2 (1999): 105-116. SpringerLink. Davidson Library, Santa Barbara, CA. 3 May, 2009.
Cornell University Law School. Ashcroft v. Free Speech Coalition (00-795). Accessed 29 June, 2009. <http:// www.law.cornell.edu/ supct/ html/ 00-795.ZS.html>
Galanos, Mike. “Commentary: Is ‘sexting’ child pornography?” CNN 8 April 2009. 25 June 2009 <http:// www.cnn.com/ 2009/ CRIME/ 04/ 08/ galanos.sexting/ index.html#cnnSTCText>
Gillespie, Alisdair A. “Adolescents accessing indecent images of children.” Journal of Sexual Aggression 14.2 (2008): 111-22. Academic Search Complete. EBSCOhost. Davidson Library, Santa Barbara, CA. 25 June, 2009. <http:// search.epnet.com>.
Goodyear, Charlie. “Teen held in child porn inquiry.” San Francisco Chronicle 18, June 200. 25 June 2009 <http:// www.sfgate.com/ cgi-bin/ article.cgi?f=/ c / a / 2003 / 06 / 18/ BA44881.DTL>
Google. Trends Labs. Search Entry “Sexting”. 29 June, 2009. Accessed 29 June, 2009. <http:// www.google.com/ trends?q=sexting&ctab=0&geo=us&date=all&sort=0>
Herald Staff. “Teen Girl Arrested in Child Porn Case.” The Miami Herald. 16 February, 1985. Access World News. Infoweb. 25 June 2009.
Hunter, James. “The Political Use and Abuse of the ‘Pedophile.’” Journal of Homosexuality 55.3 (2008): 350-387. Accessed 1 July, 2009 < http:// www.informaworld.com/ 10.1080/ 00918360802345073>
King, Peter. “No Plaything: Ethical Issues Concerning Child-pornography.” Ethical Theory & Moral Practice 11.3 (June 2008): 327-345. Academic Search Complete. EBSCO. Davidson Library, Santa Barbara, CA. 4 May 2009. <http:// search.epnet.com>.
Kives, Sari Leanne. “Adolescent Consent in Reproductive and Sexual Health Decision-Making: Should There Be an Arbitrary Age of Consent or Should it Be Based on the ‘Evolving Capacities of the Child’?” Journal of Pediatric & Adolescent Gynecology Feb. 2008: 47- 52. Academic Search Complete. EBSCO. Davidson Library, Santa Barbara, CA. 3 May 2009. <http:// search.epnet.com>.
Law Center. “Macaulay Culkin Charged With Drug Possession.” 18 September, 2004. CNN. Accessed 30 June 2009. <http:// www.cnn.com/2004/LAW/09/17/culkin.arrest/index.html>
Lagattuta, Bill. “Star Search; consequences to group of teens who made a porno movie” CBS News Transcripts. 8 January 2003. LexisNexis Academic. 15 May 2009.
Levesque, Roger J.R.. Child Maltreatment and the Law: Returning to First Principles. Springer Science + Business Media: New York, 2008.
Levine, Judith. Harmful to Minors: The Perils of Protecting Children from Sex. University of Minnesota Press: Minneapolis, 2002.
Markon, Jerry. Child Porn on Internet Leads to Crackdown. The Washington Post. 16 December, 2007. Accessed 30 June 2009. <http:// pxi.signonsandiego.com/ uniontrib/ 20071216/ news_1n16kidporn.html>
Mears, Daniel P., Christina Mancini, Marc Gertz and Jake Bratton. “Sex Crimes, Children, and Pornography: Public Views and Public Policy.” Crime & Delinquency. –
Morgan, Kim. “When Young Stars Burn Out” MSN Movies. Accessed 30 June, 2009. <http://movies.msn.com/movies/article.aspx?news=132731&>
National Center for Chronic Disease Prevention and Health Promotion, CDC. Division of Adolescent and School Health. Youth Risk Behavior Surveillance – United States, 2007. 6 June, 2008. Accessed 30 June, 2009. <http:// www.cdc.gov/ mmwr/ preview/ mmwrhtml/ ss5704a1.htm#tabs1.7>
New York v. Ferber. No. 81-55. Supreme Ct. of the US. 2 July, 1982.
Nilson, Kaycee. “Anti-Jack McClellan? OH YES I AM!” American Chronicle. 2 August, 2007. Accessed 29 June, 2009. http://www.americanchronicle.com/articles/view/33968
Ost, Suzanne. “Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society.” Journal of Law & Society 29.3 (2002): 436-460. Academic Search Complete. EBSCO. Davidson Library, Santa Barbara, CA. 22 June 2009 <http:// search.epnet.com>.
Rind, Bruce. Quotes from “An Empirical Examination of Sexual Relations Between Adolescents and Adults: They Differ From Those Between Children and Adults and Should Be Treated Separately.” 3 May, 2005. Accessed 30 June, 2009. <http:// www.ipce.info/ library_3/ files/ rind_2005.htm>
Sabina, Chiara, Janis Wolak, and David Finkelhor. “The Nature and Dynamics of Internet Pornography Exposure for Youth.” CyberPsychology & Behavior 11.6 (2008): 691-693. Academic Search Complete. EBSCO. Davidson Library, Santa Barbara, CA. 25 June 2009 <http:// search.epnet.com>.
Smyth, Cameron. Assemblyman Smyth’s Surrogate Stalker Act Signed By Governor. 1 October, 2008. Accessed 30 June, 2009. <http:// republican.assembly.ca.gov/ member/ 38/ ?p=article&sid=162&id=218833>
Soler, Mark. Public Opinion on Youth, Crime, and Race: A Guide for Advocates. October, 2001. Accessed 30 June, 2009. http:// www.buildingblocksforyouth.org /advocacyguide.html
“Should teens who ‘sext’ (circulate suggestive photographs electronically) face child pornography charges?” Online Poll. 15 April, 2009. Newsvine.com. 25 June, 2009 <http:// www.newsvine.com/ _question/ 2009/ 04 /15 / 2686422-should-teens-who-sext- circulate-suggestive-photographs-electronically-face-child-pornography-charges>.
“Teen girl charged with posting nude photos on Internet.” 29 March, 2004. USA Today Online. Accessed 30, November 2007 <http:// www.usatoday.com/ tech/ webguide/ internetlife/ 2004-03-29-child-self-porn_x.htm>.
The Oyez Project, Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002) available at: http://www.oyez.org/cases/2000-2009/2001/2001_00_795 (last visited Sunday, May 3, 2009).
“‘Sexting’ No Worse Than Spin-the-Bottle: Study” 26 May, 2004. Breitbart.com Accessed 30 June, 2009. <http:// www.breitbart.com/ article.php?id=CNG.28781ef6eb17a6d6b220a90d3bdbe4c6.9f1&show_article=1>
Sher, Julian. “Debate on Child Pornography’s Link to Molesting.” The New York Times. 19 July, 2007. Accessed 30 June, 2009. <http:// www.nytimes.com/ 2007/ 07/ 19/ us/ 19sex.html?_r=1>
Slade, Joseph W. Pornography in America. Contemporary World Issues Ser. ABC-CLIO. Santa Barbara, California: 2000.
Stevewilkosshow. “The Steve Wilkos Show: Jack Mcclellan Returns.” 5 August, 2008. Online video clip. Youtube. Accessed 29 June, 2009. <http:// www.youtube.com/ watch?v=R6KKidbOGr0>
United States. Dept. of Justice. Attorney General’s Commission on Pornography: Final Report. Washington, D.C.: U.S. Dept. of Justice, 1986.
United States v. Williams. No. 06-694. Supreme Ct. of the US. 19 May, 2008
“What to do with the innocent pedophile?” Los Angeles Times 10 August, 2007. Accessed 29 June 2009. <http:// articles.latimes.com/ 2007/ aug/ 10/ opinion/ ed-mcclellan10>
Wheeler, David Lanson. “The relationship between pornography usage and child molesting.” Diss. Texas A&M University, 1996.
Wlwttv. “Middle School Teacher Found With Child Porn.” 11 March, 2008. Online video clip. Youtube. Accessed 29 June, 2009. <http:// www.youtube.com/ watch?v=4wkmsjQgkEE>
Williams, Katherine S. “Child Pornography Law: Does It Protect Children?” The Journal of Social Welfare Law, 26.3 (2004): 245-261. Academic Search Complete. EBSCOhost. Davidson Library, Santa Barbara, CA. 3 May 2009. <http:// search.epnet.com>.