Carnal Knowledge: How Viewing Child Pornography Violates Privacy Rights

Abstract

Can a liberal society like America ban the viewing of child pornography? Yes, although explaining why takes a surprising amount of work. U.S. Supreme Court precedent discusses child pornography in terms of harm and economics. This misses the heart of the matter, and the liberalization of the law toward sexual vices, including obscenity, has left child pornography doctrine isolated.

Rethinking two underdeveloped areas of law would help make sense of banning child pornography: children’s rights and privacy rights. This article uses theories including social and legal history, feminism, vulnerability, technology, secular and Christian ethics, and childism to propose that the law should recognize children’s negative right to intimate privacy. Doing so would reframe the viewing of child pornography as a rights violation. While building off the work of other scholars who address sexual-privacy rights and children’s privacy rights, this article’s synthesis uniquely condemns viewing child pornography as a rights violation.

It also addresses practical legal issues. Its rights framing would rationalize several areas of law, including the possession ban and anti-voyeurism measures. It would also help address emerging challenges like “revenge porn” and child pornography generated by artificial intelligence. This article closes by suggesting that ethical values should supplement legal rights.

The social consensus against child pornography has masked doctrinal problems that should be remedied. Failing to do so would leave child victims on the sidelines—as objects of both child pornography and the laws banning it, but not subjects in their own right.

Keywords: child pornography, children's rights, privacy rights, morality, liberalism, artificial intelligence, revenge porn, pornography, voyeurism, ethics, criminal law, First Amendment, free speech, obscenity, psychology, dignity, technology, internet law, girls, childism, feminism, vulnerability