Sexting: Should Your Underaged Children Be Considered Child Pornographers?

20 Pages Posted: 11 Apr 2011

See all articles by Matthew Tang

Matthew Tang

affiliation not provided to SSRN

Date Written: April 15, 2010

Abstract

This article examines the recent phenomenon of "sexting" in one particular context: the prosecution of self-produced, under-aged, sexually explicit visual depictions (or "under-aged auto-pornography") under state and federal child pornography laws. The problem of under-aged auto-pornography concerns two seemingly conflicting governmental aims: (1) the protection of children who are sexually abused and exploited by their participation in child pornography; and (2) the need to protect offending minors who may have unwittingly committed serious and punishable offenses. This article does not aim to legitimize or de-stigmatize the incidence of child pornography within our society; it is an abhorrent practice, which ought to be eradicated through the aggressive prosecution and punishment of the people who create it. In doing so, however, our society must not lose sight of the statutes’ raison d'être, which is ultimately the protection of children. The prosecution of minors under child pornography laws seemingly subjects them to the very means put in place to protect them. Part I will briefly discuss the historical and cultural development of under-aged sexting generally, and then discuss the potential legal liability of under-aged auto-pornography. Part II will discuss the difficulties underlying the use of child pornography laws for prosecuting under-aged auto-pornography, and then summarizes two viewpoints on whether such prosecutions are appropriate. Part III will propose a solution to this problem by presenting a system of classification for decriminalizing this form of sexting consistent with the governmental interests presented. Finally, Part IV will conclude with a few additional observations regarding recent incidences of sexting, including some alternatives for curtailing its prevalence.

Keywords: sexting, child pornography laws, cell phone porn, minors, children, under-aged, self-produced, auto-pornography, alternative treatments, unwitting, government regulation

Suggested Citation

Tang, Matthew, Sexting: Should Your Underaged Children Be Considered Child Pornographers? (April 15, 2010). Available at SSRN: https://ssrn.com/abstract=1806622 or http://dx.doi.org/10.2139/ssrn.1806622

Matthew Tang (Contact Author)

affiliation not provided to SSRN ( email )

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