The New York Times is reporting that a new study, published today in the journal Pediatrics, shows that “only” 1% of children are violating child pornography laws by sexting. Apparently, it was previously thought that about 20% of children were violating child pornography laws by sexting. I have two immediate thoughts on this issue.
First, there is no bright line separating sexually explicit images of children that are pornographic from sexually explicit images of children that are not pornographic. Whether any particular sexually explicit image of a child is pornographic is a factual question. Prosecutors have enormous discretion to decide whether to pursue such a case, and juries have enormous discretion to decide whether a particular sexually explicit image of a child is pornographic. Of course, there is always the opportunity to obtain review by judges on the grounds that there is legally insufficient evidence, but that cannot occur until well after arrest, and the standard of review is extremely unfavorable to defendants. The impression given by the article—that only 1% of children are subjecting themselves to being arrested for violating laws prohibiting child pornography—is false and misleading.
Second, the fact that at least 1% of children are subjecting themselves to being arrested and convicted for violating laws prohibiting child pornography is troubling. If a 16 year old girl texts a sexually explicit image of herself to her 16 year old boyfriend, she has at least arguably violated child pornography laws. There are an enormous number of children that could be prosecuted for violating child pornography laws because of seemingly innocent sexting. Even if only 1% of children are subjecting themselves to being arrested for violating laws prohibiting child pornography, that is still a huge number of children that could have their lives destroyed.
