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Back in December of 2017 I posted Penile Projection, the story of a police detective with a penis obsession:

…the story of a 17-year old boy and his 15-year old girlfriend who engaged in sexting, a common contemporary means of social—ahem—intercourse. In the course of that intercourse, the young man, who was then unidentified, sent a video of his erect penis to the young lady, who was likewise unidentified. The erection got a rise out of the young lady’s mother, who inflamed the police such that a Detective David Abbott became engorged with purpose and righteous indignation and was determined to catch the unknown perpetrator by means of hi-tech penile comparison. Abbott actually obtained a search warrant to photograph the young man’s naked body, including his penis, and when that didn’t work, obtained a second warrant to inject the alleged penis/perpetrator with drugs designed to cause an erection, the better to construct a penile lineup—of sorts.

Take the link for details of that Twilight Zone case, but the point is, more or less, the misuse of child porn statutes by some rather obsessive police officers. And now we have another such example, this time from Minnesota. Arstechnica.com reports:

A 14-year-old girl is facing charges in Minnesota juvenile courts that could lead to her being placed on a sex offender registry—all for taking a nude selfie and sending it to a boy at her school. Prosecutors say that she violated Minnesota’s child pornography statute, which bans distributing sexually explicit pictures of underaged subjects.

But a legal brief filed this week by the ACLU of Minnesota says that this is ridiculous. Charging a teenager for taking a nude selfie means the state is charging the supposed victim—an absurd result that the legislature can’t have intended when it passed Minnesota’s child pornography statute, the ACLU argues.

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I’m not usually in agreement with the ACLU, but in this case, they have a point.

What we do know comes from the ACLU’s legal brief, which includes a brief description of the case. According to the ACLU, the anonymous teen sent a nude selfie to a classmate over Snapchat. The recipient apparently took a screenshot of the message and shared it with others at school without the girl’s consent. One of the classmates alerted the police in Faribault, Minnesota, which is presumably where the girl goes to school.

Officials decided to charge the girl with the ‘felony sex offense of knowingly disseminating pornographic work involving a minor to another person.’ An adult convicted of this crime can face up to seven years in prison. As a 14-year-old, the girl in this case isn’t facing a criminal prosecution in adult court and won’t face the harsh sentence an adult might face.

The problem, the ACLU notes, is that if she’s found guilty she is likely to be placed on a sex offender registry, where she would face the same stigmas as someone who commits violent sex crimes. That could lead to difficulties finding a job or obtaining housing.

The ACLU’s brief doesn’t mention whether the boy was charged for distributing the girl’s photo to other classmates.

Many child porn statutes are running afoul of sexting and social media, issues pretty much unknown and unimaginable when many of these laws were written. Obviously, they were written for the protection of children, to prevent unscrupulous, even dangerous adults from taking advantage of children, and to suppress child porn by eliminating–as much as possible–the market. Unfortunately, some idiotic police officers and prosecutors, even before the advent of sexting and social media, did their best to prosecute parents for photographing their children in innocent settings, such as bathtubs, or while changing diapers. But with the near total extinction of photographic film in favor of digital photography, that problem more or less took care of itself. There were no more film developers to spot and report what they thought might be child porn to the delight of overzealous authorities. The issue is a bit more complex, however:

The ACLU also argues that charging a teen for taking nude selfies violates the First Amendment. In a 2002 case, the Supreme Court ruled that the First Amendment protected the creation of virtual child pornography—in which no actual children were used in the creation of works that appeared to involve sex with children. The court held that laws against child pornography were justified because protecting children against exploitation was a compelling state interest. But that argument doesn’t apply to a ban on virtual child pornography.

If the point of such laws is the protection of children, one can hardly protect children that don’t actually exist, nor, one would hope, can mere thoughts be criminalized. No rational police officer would want to step over that line, and no rational police supervisor, prosecutor, or judge should allow it.

The ACLU argued that a similar point applies here. It doesn’t make sense to say that a 14-year-old girl is coercing herself into creating child pornography. Hence, in the ACLU’s view, the state lacks a compelling interest to limit the expressive rights of 14-year-olds to create nude selfies and voluntarily share them with peers.

When a teenager sends a nude selfie to a peer ‘in an attempt to indicate romantic or sexual interest, the same compelling risk of physical and psychological injury does not exist,’ the ACLU argues in its brief. ‘Thus, the statute infringes upon constitutionally-protected speech.

The ACLU’s brief may be found here.  What compelling state interest could there be in preventing kids from photographing themselves and sending those photos to other kids? Obviously, adults coercing kids to do that would reasonably violate the law, but where the victim is also the suspect, the producer of what the state in this case calls child pornography, and their own body is the evidence of the “crime,” should the law apply? This implicates the very definition of speech.

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The Supreme Court, long ago, ruled on these issues. In Jacobellis v. Ohio (1964) Justice Potter Stewart famously wrote that he could not define obscenity, but he knew it when he saw it. The court has also ruled “exotic” dancing, dancing done by nude or semi-nude women, constitutionally protected expression. It matters not that one might argue the specific purpose of such dancing is sexual arousal, dance is a form of expression, and consensual sexual arousal is certainly not unwholesome. Put a nude 14-year old girl in front of a group of men, or a single man, however, and that’s a different story.

One might argue the state has an interest in upholding some standard of public morality, but then we’re back in Potter Stewart territory, where porn is in the eye of the beholder, and no one can be certain what is and is not proscribed. We’re also in a strange legal landscape where teenagers can sext each other in as explicit terms as they can imagine, but the moment one of them attaches a photo of the means by which to act on their sexually suggestive text, for eager, and perhaps salacious, cops, they’re child pornographers and simultaneously, victims of child pornography, and their means, the evidence of the crime.

One might also consider that two teenagers might engage in sexual play while naked—as long as the age difference is not too great, invoking a statutory rape statute—without breaking the law, but should one take a photo of their anatomy, or of their partner’s, and share it with that partner, they would be criminally liable under the kind of unreason involved in this case. In fact, under the illogic of this case, keeping photos of their own bodies could as easily be chargeable as possession of child porn. They can look at and touch each other’s naked bodies all they like, but the moment they take a photo and share it—or not–they’re child pornographers. Everything is a crime and everyone is simultaneously a victim and a suspect.

One may wish to consider how common this sort of behavior is. The UCLA brief suggests some 30% of kids have sent naked photos of themselves, but 45% reportedly have received them. While this may seem a bit odd–how can there be more naked photos received than sent—it means police officers are going to regularly run into it, and it makes clear the ultimate problem: faulty police discretion.

As I’ve often written, it’s important to hire intelligent, reasonable people as police officers. They must be flexible and rational, capable of not only enforcing what might appear to be the letter of the law but the intent of the legislature as well. Officers must also be able to understand that some laws are written to “make a statement,” to politically virtue signal, rather than to further public safety. This doesn’t mean officers should use their discretion to avoid enforcing laws with which they might have a political disagreement. It does, however, mean they must be able to understand one can’t simultaneously be a victim and suspect in the same crime.

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Unfortunately, as I wrote in Police IQ and Police IQ 2, many law enforcement agencies are seeking to hire people only slightly smarter than average, and courts are agreeing with them. The idea is smart people will become too easily bored and quit too soon. There is no way to know if that factor was at work in this case, but it surely could be.

With any luck, more rational heads will prevail. This should never had made it past a first line police supervisor, to say nothing of a prosecutor or judge. One thing is certain: no public safety interest will be served by turning this child into a sex offender, or making them register as such.