We’ve all heard the stories. Some 17 year old girl sends a nude pic to her (also 17) boyfriend. Then they haul her @ss in for kiddie porn. For the purposes of being the “victim”, she is under aged. But for the sake of this very serious crime, she is an “adult”–and a child pornographer, no less.
Anyways, I am not going to debate the morality or even legality of what I just posted. My question is simpler than that: How is under aged sexting treated in other countries?
I’m talking western Europe and Canada. But perhaps Mexico and South America too.
I am not concerned with the Middle East (we already know how they view sex and morality). But do include that too, if you feel you must.
Well, under Irish law I think the main issue is whether the image sent amounts to “child pornography”. If it depicts a child (meaning: anyone aged under 17) engaged in explicit sexual activity (including masturbation) it would be, or if its “dominant characteristic is the depiction, for a sexual purpose, of the genital or anal region of a child” it would be.
What about a topless shot, or a suggestive shot? A bit more borderline. It’s child pornography it it " indicates or implies that the child is available to be used for the purpose of sexual exploitation". “Sexual exploitation” isn’t just any sex, but it does include any sexual activity which is unlawful, and of course sexual intercourse under the age of 17 is unlawful. So if the shot indicates or implies that the child is available for underage sex, then it’s “child pornography”.
If it’s child pornography, then it’s an offence to produce, distribute or possess it. The taker/sender of the photograph would be guilty of production and distribution, the recipient of possession. It wouldn’t make any difference that the person in the image was one or other of them.
There’s no “Romeo and Juliet” defence to cover cases where the image is of one of them, and they are in a romantic relationship.
But, I think, in such a case prosecutorial discretion would be exercised. I can’t remember hearing of any such case where a prosecution was brought. Any complaint from, e.g., a parent of one of the young people involved would be investigated but if the investigation suggested that there was no coercion or bullying involved and the exchange was private and consensual, the view would probably be taken that prosecution was not in the public interest or in the interests of the young people involved. Depending on the age of the couple and the other circumstances there might be a child welfare/child protection intervention, or similar, but I think not a prosecution.
Norway would be similar. There is a “Romeo and Juliet” defence for victims between 16 and 18 years of age, when there is consent, the offender is in a relationship with the victim and they are close in age. And I believe some degree of discretion would be exercised if the victim was younger as long as the offender as well was young. And if the offender was under 15 it wouldn’t be a case for the criminal justice system at all.
There is certainly “prosecutorial discretion” involved in the United States too. The outrageous stories that pop up in the news from time to time are those cases where a prosecutor, in his “prosecutorial discretion”, chooses to make a case where a widespread consensus of public opinion would say the case is ridiculous.
What is really the problem, is that there is no good system of “checks and balances” in the system of prosecutorial discretion, and we get the occasional loose cannon prosecutor who creates mayhem in the judicial process and in the lives of the people he prosecutes, and there is no effective way to stop that until massive damage is already done. The prosecutor, apparently, doesn’t have to submit his plans for any supervisory approval, and there is nobody to appeal to, to intervene and review the merits of the case at this early stage in the process.
You see the same thing happening, sometimes, with those weird cases of “Satanic child abuse” like the McMartin case, where a deranged prosecutor creates havoc in an entire community, and nobody can stop him.
Yup. Presumably the great bulk of consensual underage sexting in the US is not prosecuted. We only hear about the cases that are prosecuted; that may be a tiny minority.
Where there is a prosecution, there are (at least) two possibilities. One is that this isn’t a consensual case. Since consent is formally irrelevant to the charge, the pleadings don’t have to state that there was no consent. Nevertheless it may emerge when evidence is given at the hearing that this wasn’t consensual; there was bullying or exploitation or some other unsavoury factor at work. But that may not be immediately evident from the headlines. I know of a couple of cases in Ireland where “Romeo and Juliet” underage sex cases have been prosecuted (against one party but not the other); in each case the facts would have supported an alternative prosecution for rape or sexual assault, but a prosecution for the lesser charge was going to be less traumatic for the victim.
The other is a poor prosecutorial decision. Which means, of course, a poor prosecutor. In Ireland prosecutors are career public servants, answerable to the Director of Public Prosecutions, also a career position, who is answerable to the Attorney General, the principal legal adviser to the government, and his office is filled by appointment, not election. The result is that there’s very little political, and no electoral, pressure on prosecution decisions, and there is a well-established and well-documented protocol on the factors that influence prosecution decisions. It’s not a perfect system, but in this particular circumstance I think it works well, and it’s fairly resistant to influence from moral panics or electoral grandstanding.
I know less about arrangements in the US, and presumably arrangements vary from state to state, but in at least some states the state AG (and perhaps county attorneys) are elected, and possibly these elected officials are much closer to individual prosecution decisions than their counterparts in Ireland. That might create at least the possibility of greater volatility in prosecution decisions.
I don’t know what happens in the UK, except that we are told that there is a lot of it going on and many participants are very much younger than 17.
The tabloid newspapers periodically get their knickers in a twist about it, but since, of course, they are severely limited as to detail, their isn’t really much to report. I don’t think that a child would ever be prosecuted for ‘publishing’ a picture of themselves. I am sure that if anyone else ‘published’ the picture, they would be in serious trouble.
The problem society has, is that a couple of nine-year-olds, sitting safely in their bedrooms at home, probably have no idea that the ‘naughty’ pictures that they send each other, may well end up in the wrong hands. The message that pictures on the internet never die needs to be heavily reinforced.
We also have an anomaly that the 17yo girl and boy can legally live together and have as much sex as they like, but if they take pictures, they are breaking the law.
In Canada, generally (IANAL) but my understanding - young offenders (under 18) are prosecuted under the Young Offenders Act. The maximum sentence is IIRC 3 years or until 18 (?). It has to be a VERY serious crime to prosecute a juvenile as an adult. Juvenile records are sealed, so a person cannot be registered as a sex offender for life and relegated to living under freeway overpasses for something done under 18.
Plus, Crown Attorneys in Canada are appointed. The idea of electing judges and prosecutors just seems bizarre. So the prosecutors are more interested in justice than in brownie points for future election campaigns, do not nee to quote statistics “X sex offenders put on the list.”
However, creating and possessing child porn is a chargeable offense, and woe betide the foolish 18-year-old who receives a copy of this and does not delete it immediately (if that even exonerates him).
It varies state to state in Mexico. As an illustrative example, under the federal penal code, marketing, distributing, showing, circulating or offering pornographic material to persons below the age of 18 is subject to 6 months to 5 years of prison and a fine equal to 350 times the daily minimum salary (penalties doubled if the offender is a relative or holds a position of authority), plus reparation of damages including psychosexual therapy for the victim. Having or storing pornographic material without the intent to distribute is subject to a penalty of 1 to 5 years of prison and 100 to 500 times the daily minimum wage, plus court-ordered psychiatric treatment.
Offenders aged 12 to 18 are generally excluded from the “adult” justice system, and child pornography isn’t among the listed exceptions to this general rule. The “adolescent” justice system assumes diminished culpability based on age alone. Only serious and violent crimes such as terrorism, drug dealing, rape, murder, hijacking, kidnapping, armed robbery, etc. are punishable by internment for adolescents.
Thus, even if a sexting image were construed as child pornography, the offender could only be subjected to compelled therapy, court supervision, community service, reparation, orders of protection, removal from the home if the offender shares the household with the victim, etc. Offenders under age 12 cannot be held criminally liable.
Mexican law and jurisprudence don’t define pornography, but since Mexico has ratified the Optional Protocol to the UN Convention on the Rights of the Child, its definition can be used. Under the Protocol, child pornography includes “any representation of the sexual parts of a child for primarily sexual purposes”, a child being any person under 18 years of age per the Convention.