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Is That "Sexting" Pic Illegal? A Scientific Test 711

Posted by CmdrTaco
from the i-like-the-testing-part dept.
Frequent Slashdot contributor Bennett Haselton writes " Amid the latest 'sexting' controversy, here is a proposal for a scientifically objective method to determine whether a picture constitutes child pornography. This is a harder problem than it seems, but not for the reasons you'd think. And it raises questions about how the same scientific principles could be applied to other matters of law." Hit the link below to read the sextiest story on Slashdot today.

A county district attorney in Pennsylvania has threatened to file felony child pornography charges against three teenage girls for pictures that they took of themselves, even though the girls' lawyers say the pictures are clearly not sexually explicit and do not meet the legal definition of child porn. The American Civil Liberties Union has countered by asking a federal judge to block District Attorney George Skumanick from filing charges.

Skumanick won't show the pictures to anyone, including the girls' lawyers, but according to the reported descriptions, one picture shows two of the girls flashing the peace sign in their bras, and the other picture shows a girl wrapped in a towel with her breasts exposed after stepping out of the shower. Unless there's something very significant being deliberately left out of those descriptions, it sounds pretty obvious that the pictures do not meet the definition of child pornography, which requires sexual explicitness, not just nudity.

Skumanick may even sound like a buffoon for threatening to prosecute the girls over those pictures, but his overreaching is probably an example of the "context syndrome" that I referred to in writing about a Wikipedia article about a CD showing a naked underage girl on the cover. In that article, I wrote:

Suppose you read a news article about a man who was arrested for possession of child pornography, and you happened to see a sample of the images (never mind how) that he was arrested for. And suppose the Virgin Killer album cover photo had been mixed in with those images. Would it have jumped out at you as an obvious case of over-reaching by the police?

In other words, even an obviously legal photo might seem illegal when it's mixed in with a group of photos that constitute actual child porn. According to the AP, Skumanick's office first found the photos in question after confiscating students' cell phones and rounding up 20 students accused of making or distributing the images found on the phones. Some of those other photos were presumably racy enough to meet the definition of child pornography, and Skumanick probably just lumped in the bra and towel pictures into that category without thinking too much about it. Giving him credit, if someone had come to his office and shown him the picture of the towel girl by itself and asked him to prosecute the girl for creating child pornography, he might have said that it didn't meet the legal definition.

But the "context syndrome" only excuses the initial mistake, and only partly. By now, he's had time to think about those particular pictures, and he knows that non-sexually-explicit photos do not constitute child pornography, so what is he doing? He claims that the girls in their bras were posed "provocatively", but that's not the same as sexual explicitness, and he hasn't even made that claim about the towel picture, so unless there's some bombshell piece of information about the photos that he's still keeping secret (and why would he?), there's no excuse for him not to drop the threats of prosecution right away.

But could even the initial mistake have been avoided? I think it could have, if you designed a scientific procedure for deciding, objectively, whether an image meets the legal definition of "child pornography", by borrowing some of the principles used in police lineups.

Now, obviously one big difference between deciding if the right suspect has been identified in a lineup, and deciding whether an image constitutes child pornography, is that the question of a suspect's identity in a lineup is a question about objective reality, while the question of whether an image is "child pornography" is a matter of opinion and consensus about an imprecisely defined English phrase, so it may sound odd to try and find a "scientifically objective" answer. But by "objective", I mean that the procedure should eliminate the influence of factors that are not relevant to the legal definition of child pornography (for example, if asking someone to decide if they think a picture meets the definition, don't tell them whether the photo was found in a pedophile's basement or in a parent's photo album, because under the strict legal definition, that shouldn't matter). And by "scientific", I mean that the Yes/No answers returned by the procedure should be repeatable as far as possible, so that different defendants aren't being tried under wildly different standards, where Bob is convicted of possessing an innocuous photo while Alice is acquitted even though she possessed a racier one.

A naive solution, from a scientific point of view, would be to poll a random sample of lawyers or other professionals in a police go-to database, and ask them to evaluate whether the picture is child pornography, without any information about where the picture came from. These results would be objective (if the respondents didn't know the source of the picture), and would generally be repeatable, if the sample size is large enough. The problem with this method is that while all defendants would be held to the same standard, all citizens would not be. Suppose the lawyers in the go-to list start to decide, as many of them probably would, that anybody who is being prosecuted for possessing a picture of a topless underage girl is probably a pedophile creep anyway, and would start voting "child pornography" for all but the most obviously legal pictures. The prosecutor would realize this, and would know that they could threaten to ruin people's lives by charging them with possession of child pornography because of pictures found in their possession -- even while other members of society possessed similar pictures without ever being charged.

Here's where the analogy to a police lineup comes in. Police lineups are supposed to include "known innocent" candidates in order to test the credibility of the eyewitness; if the eyewitness selects a candidate who could not have possibly committed the crime (because, for example, they were in jail), then the police know the eyewitness is not reliable. (This was one guideline notoriously violated by District Attorney Mike Nifong in the Duke lacrosse team rape trial; he assembled a lineup consisting only of lacrosse team members from the party, so that whomever the eyewitness identified was guaranteed to fall under a cloud of suspicion.) In the same vein, the lawyers or other experts being consulted by the police could be shown a "lineup" of photos, consisting of several photos that were determined in advance to be legal (either because of a prior court ruling, or perhaps just because the D.A. had declined to prosecute the photos on previous occasions), along with the photo whose legality was in question. Ask the experts to pick which photo they think is closest to the definition of child pornography. Unless most of them pick the photo that's on trial, then that photo can't be said to be worse than any of the other photos that had already been deemed legal.

This is closer to a fair solution, but there's still a big loophole. When police assemble candidates for a lineup, they are supposed to pick candidates who match the general physical description given by the eyewitness. If the eyewitness said they were attacked by a redhead, the police can't fill out the lineup with one redheaded suspect that they want to railroad, and 10 blondes. Because attributes like "Caucasian" and "redhead" are pretty straightforward, if the rules for lineups are being enforced properly, the police don't have a lot of wiggle room to fill out the lineup with candidates who blatantly don't match the description. Unfortunately, it would be a lot easier to cheat when creating a "lineup" of photos to compare against a photo whose owner was on trial for possessing child pornography. If the photo at issue is probably legal but still provocative, then the police could fill out the rest of the lineup with completely non-sexual but perhaps eyebrow-raising photos, like a naked teenage girl watering some houseplants. Then when the police ask, "Which of these does not belong?", everybody would pick the provocative one, and the police would take that as "vindication".

The only way I can think of to guard against this, would be to let the defense counsel pick the other photos in the lineup, and then they could pick the most "provocative" ones that were still legal! For any photos that have been declared legal in the past, the defense ought to be able to argue that if an independent panel of experts doesn't think their client's pictures are any worse than those, then their client should not be prosecuted either. (If the defense lawyer decided their client was a child molester and wanted to throw them to the wolves, they could deliberately pick non-sexual photos for the lineup, so that their client's photo gets pegged as the odd one out -- but when the defense lawyer decides to railroad their own client, it's almost impossible for the system to guard against that anyway. Also, it's probably not a good idea to make this an option for child pornography defendants who decide to represent themselves, so that they can rifle through thousands of photographs of naked children, even legal ones, to find the pictures that they think are the "sexiest" to use for their defense.)

Perhaps someone can think of a better method that is still roughly scientific, in the sense of trying everyone according to the same standard and giving repeatable results. The irony is that despite the potential of child pornography charges to destroy a person's life, it is in possible in principle to try child pornography cases more objectively than almost any other type of crime, because you can separate out the alleged criminal act from everything else about the defendant, and let people examine the evidence of criminality in isolation. If someone shoots a person and claims it was self-defense, it's hard to imagine how you could distill out only the relevant facts of the case, and pass along just those facts to some third-party observer who then renders a judgment without knowing anything else. Half the courtroom battle is over what facts are "relevant" in the first place. But in the case of a child pornography charge, you can give the photo -- and no other information -- to an expert, and ask them to make a judgment.

I know, I know. The police and prosecutors are not actually doing to do this. But that in itself says something. Even if it's not possible to try most crimes in a truly objective fashion, why don't the courts and the police do this when it is possible? Many first-year psychology students that have an intuitive grasp of the principles of sound double-blind testing, could probably come up with a procedure better than the one I've described. When you've spent long enough thinking about how to design experiments objectively, you can't even hear about lawyers arguing over whether a photo constitutes child pornography, without the thought popping into your head: "Have a group of experts look at the photo and rate it, independently of each other. Compare the results to a 'control' result where the experts look at a photo that is not child pornography." And so on. Why don't those suggestions ever come from within the legal profession itself?

And on the flip side, what about using scientific methods to examine facts about the legal system? When considering that judges are tasked with evaluating parties' claims in an objective and fair manner, one could ask: Are they really being objective? What are different ways that we could test this? Perhaps by having two actors in different courtrooms on the same day, charged with exactly the same crime under the same circumstances, except one is black and the other is white, and repeat the experiment many times to see if they receive different average sentences. For a scientist, the idea is the most natural thing in the world. Forget the fact that the legal system doesn't do this -- why is virtually nobody in the legal profession even suggesting it?

Probably because most people who think in terms of objective experimental design are drawn towards the hard sciences, not toward law. That's probably a good thing; such people can likely do more good as physicists and research psychologists than they could as lawyers and policemen. But they can still speak out for the principles of science to be applied wherever possible, in any area where objectivity is important -- especially the law.

All true scientists at heart should keep telling the world that "science" is not just a label that encompasses nerd subjects like biology, physics, and chemistry, with other subjects like art and law being "outside the domain of science". While the statements made within the framework of those subjects are not scientific ("This painting is pretty", "The court finds the defendant not liable", etc.), science can make statements about the people in those professions and the patterns in the conclusions that they reach. If art experts are evaluating paintings differently depending on whether they think the paintings come from an art gallery or a 4-year-old's kitchen table, you could find that out through a scientific experiment. If judges are giving an easier time to lawyers than they are to parties who represent themselves, even when they make exactly identical arguments, you could test that hypothesis with an experiment, too. And scientific principles could be used to draw up procedures for trying cases more objectively, as in the procedure for deciding the legality of sexting photographs. We just need to get over the idea that "scientists" should limit themselves to the forensic CSI stuff and then stay away from the legal arena because that's a "separate domain". Science could tell us quite a lot about how fairly justice is dispensed in the courtroom, and sometimes even how to fix the problems.

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Is That "Sexting" Pic Illegal? A Scientific Test

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  • nice... (Score:5, Insightful)

    by Em Emalb (452530) <ememalb@NospaM.gmail.com> on Monday March 30, 2009 @10:20AM (#27387865) Homepage Journal

    Skumanick won't show the pictures to anyone, including the girls' lawyers

    hard to prove your innocence if you're not given the chance to.

    • Re:nice... (Score:5, Funny)

      by sakdoctor (1087155) on Monday March 30, 2009 @10:25AM (#27387925) Homepage

      Everyone knows that sex offenders float when hog tied and thrown in water. How much more scientific do you need?

      • Re:nice... (Score:5, Informative)

        by Em Emalb (452530) <ememalb@NospaM.gmail.com> on Monday March 30, 2009 @10:30AM (#27388001) Homepage Journal

        it's shame this got a troll mod. Rather amusing to me, and a tongue-in-cheek reminder at how quickly history is forgotten.

        http://en.wikipedia.org/wiki/Salem_Witch_Trials [wikipedia.org]

        Off wit 'es hed.

        • Re:nice... (Score:5, Insightful)

          by ceo4techass (93221) on Monday March 30, 2009 @11:30AM (#27388877)

          Yep - more child sex hysteria [blogspot.com]. Those poor kids - our legal system makes me sick. I can't imagine how many people in my generation would be behind bars now for the harmless things we did as adolescents were it not for the absence of this insanity back then.

          • Re:nice... (Score:5, Insightful)

            by lupis42 (1048492) on Monday March 30, 2009 @11:54AM (#27389271)
            I wonder if it would be possible to integrate several of those links into a well constructed essay, and send it along to the offices of every elected representative in the country. Just make sure they get wrapped in something obfuscating, and see what happens. I mean, if clicking a link is grounds for arrest, there suddenly becomes a high-stakes version of the goatse game.
            • Re: (Score:3, Funny)

              by PitViper401 (619163)
              'The goatse game' ? Dear god man! What kind of game night are you having??? Buy Monopoly or Scrabble!
              • Re:nice... (Score:5, Insightful)

                by JWSmythe (446288) * <jwsmythe@@@jwsmythe...com> on Monday March 30, 2009 @01:51PM (#27391027) Homepage Journal

                    Mental note: When Lupis42 invites you over for "game night", politely say no, and block his calls.

                    And as for the pictures in question, I'm not surprised they haven't been released. One charge for the girl is bad enough, if the parents start distributing the pictures, they'd be in for a world of pain. I'm afraid to think of all the charges, but at least some start with 18 U.S.C. 2257. I'm sure there would be many more state and local charges.

                    The picture as described, with a girl naked, except for a towel around her waist, can easily be construed as pornography.

                    Then again, would any photo shot at a topless beach or nudist colony be pornography? Not really. I'm sure there can be some that are, but not the general snapshot of someone standing there.

                    We are a repressed society. Some Americans have open minds about themselves and the form that we live in. Some are offended by people going to the beach in (oh my gosh) bikinis. An amazing number are offended by nudist camps, even those that are adult only. Little do those who are so upset about this know, but even I am naked everyday between the time I step into the shower, and the time I get out of it. I hope they are too, but I'd prefer not to think about most people naked. (oohh, the mental images, I've gone mentally blind!)

                    So kids are doing stupid things. You know what, their PARENTS should be parenting. Just because you can give a 10 year old kid a cell phone to call home on doesn't mean that you should. Great, you've given them one with a camera and the ability to send text messages. Back in the day, these were more discrete events, where we actually had to sneak away together, and there was no evidence. :)

                    [flashing back to high school] ... ...

                    ya, we've all been doing things that we shouldn't have, but it's because we circumvented parental controls. Giving such a blatant way to circumvent the parental controls is stupid.

                    I like that kids can have cell phones. They can call home in an emergency. "Mom, my friend is drunk, I don't want to ride home with her." is the best call you can hope for that night. Go, pick up the kids, and collect the car in the morning. It's much better than the knock on the door from law enforcement.

                    I'm not going to try to tell people how to parent, and neither should the law, but the "sexting" thing is something that should be within the parents ability to control. Prosecuting a child for the law that's suppose to protect the child from older predators is stupid.

      • Re:nice... (Score:5, Funny)

        by Anonymous Coward on Monday March 30, 2009 @10:30AM (#27388021)

        So, they're made of wood, like witches?

        • by Dunbal (464142)

          Or bread, ducks...small rocks

      • Re:nice... (Score:5, Insightful)

        by Hojima (1228978) on Monday March 30, 2009 @10:49AM (#27388273)

        This is yet another comment that I wish could be modded beyond a 5. Good job for such a witty comment on how this has turned into a witch hunt. And if I may contribute to this discussion with an argument that has been proposed before yet not enough know about it: go after people who have actually committed child abuse or sexual offenses. Who cares if some pedophile has child porn? If anyone goes to a hentai site, they may actually have an idea of the amount of people jerking it to loli. Hell, the Barely legal magazines and similar sites are a clear reminder of how many men are attracted to underdeveloped women. The law is not here to persecute people who are likely to commit a true crime, it's here to persecute those who have. If we continue to press charges like these, we may as well start rounding up those who go through too much violent media (sound familiar?).

        • Re: (Score:3, Insightful)

          by postbigbang (761081)

          Sometimes conspiracy is a crime.

          And when a real correlation (causation != correlation) can be made that pedophiles become motivated to act on child porn, we have the circumstance that there might be a crime committed.

          The actual harm is that child porn happened. It abused one or more children to have been recorded for subsequent whatever. In a way, it's like snuff films, where someone was killed in the recording of the film for the subsequent gratification or use by others.

          The chicken-and-egg problem is toug

          • Re:nice... (Score:5, Insightful)

            by cduffy (652) <charles+slashdot@dyfis.net> on Monday March 30, 2009 @11:45AM (#27389101)

            It abused one or more children to have been recorded for subsequent whatever.

            That justification -- while exactly the reason the genuine article should be illegal -- doesn't address the illegalization of virtual or simulated child porn, or cases like this (where if any abuse occurred it was self-abuse with no third party involved in the creation).

          • Re:nice... (Score:5, Insightful)

            by 1u3hr (530656) on Monday March 30, 2009 @12:13PM (#27389573)
            If a teenager sends it to arouse someone or titillate them, is it porn, and if so, is that tacitly illegal? Perhaps it should be, but it's not a felonious act.

            Why on earth should titillating the person who looks at an image make it illegal? Isn't the whole reason (excuse) for making some images illegal that a crime was committed in MAKING it -- performing a sex act on a child -- whether anyone sees the image at all is really irrelevant to that, except as it serves as evidence of the act. Why is it not illegal to look at images of crime scenes, death, murder? You see these in newspapers....

            It's just an easy score to catch some loser with a big porn collection, and does NOTHING to protect children (or actually does them harm, as in this case).

            And I was fairly amused at the article's suggestion of making panels of lawyers to look and rate the degree of kiddie porn a given image has. Why are lawyers immune to the evil effects of looking at these images? Why does anyone else run the risk of becoming a depraved sex fiend?

            • Re: (Score:3, Funny)

              by ray-auch (454705)

              > Why are lawyers immune to the evil effects of looking at these images? Why does anyone else run the risk of becoming a depraved sex fiend?

              Well there's a really obvious answer to that one... (think lawyer jokes)

          • Re:nice... (Score:5, Insightful)

            by commodore64_love (1445365) on Monday March 30, 2009 @12:23PM (#27389733) Journal

            >>>The actual harm is that child porn happened. It abused one or more children to have been recorded for subsequent whatever.

            Yes, no, and no.

            - Yes if a sex act was performed then a crime has been committed (underage sex/statutory rape)

            - No if the picture is just simple nudity, like from a family resort or beach or bathroom, then no crime has been committed. Nudity is not abuse or criminal.

            - No if the picture is just a drawing of sex (think Japanese anime), then no crime has been committed, because there is no victim. Simple as that.

            THINK people.
            And stop being afraid
            of the human body.

          • Re:nice... (Score:4, Insightful)

            by IgnoramusMaximus (692000) on Monday March 30, 2009 @12:28PM (#27389845)

            A certain subsegment, however, can get sexual gratification...

            Yes, Mr. Puritan. There are some people out there who would get sexual or some other kind of gratification out of pictures of anything, including those of banana peels. Lets make pictures of bananas illegal because it does not bear thought that someone out there is having unapproved by you dirty emotions ...

            It might come as a shock to you but all the most idiotic and harmful sex "laws" ever conceived are based upon this very principle, of some pervert assholes trying to stop someone else from feeling what they themselves secretly do. And that includes most of the lunatic monuments to hate called "religions".

            The logical, reason-based conclusion is on the other hand rather obviously consistent: images of (and other information about a) crime is not a crime itself. A picture of an armed robbery is not the robbery itself. A picture of a car theft is not the car theft. A picture of a murder, no matter how torturous and bloody, is not the murder itself. A picture of a child being molested is not the molestation itself. It is rather simple, no?

            True, a picture can be an evidence of a crime, and - particularly if the distribution channel was restricted and involved monetary exchange - the buyer can also be an accessory to that crime, but once the picture is out there on the nets in digital form, attempting to prosecute anyone who ever came in contact with it is merely an excuse for mass witch-hunts in the name of stupidity, money, inflated egos etc. In fact such persecution becomes a crime greater the the child molestations which it is supposed to prevent and the police, prosecutors and the politicians responsible greater villains then the paedophiles, as their activities bring great, devastating, irreversible harm to far many more innocents then the molestations do. And all for the sake of these "crusader's" own personal power trips, delusions of grandeur and general "gratification". And these villains cannot even make an "excuse" anymore that their victims are adults (as if that somehow lessened their villainy) because as this very Slashdot article shows, their victims are increasingly also children.

            But this is nothing new, history teaches us that this always happens when some band of religious lunatics takes over and manages to disguise their sick dogma as "law and order". Witch hunts are an just one element of the inevitable outcome.

            Oh, and you can also forget any "arguments" about the child being somehow additionally traumatized by the existence of these pictures in the wilderness of the net as facial features change so rapidly in growing children that most unrelated by blood people are unable to identify adolescents, never you mind adults, from childhood pictures. Hell, most people cannot recognize themselves in them, which came as a surprise even to me when I could not identify myself in my elementary school photos. So much for "secondary" trauma mumbo-jumbo. Just more excuses for keeping up the witch pogroms for fun and profit.

          • Re: (Score:3, Insightful)

            by Ahnteis (746045)

            >> The actual harm is that child porn happened.

            Let's assume that in this case, "child porn happened". Who is the victim? Supposedly, it's the person who was photographed -- correct?

            Guess who's being threatened.

        • Re: (Score:3, Interesting)

          by Dragonslicer (991472)

          The law is not here to persecute people who are likely to commit a true crime, it's here to persecute those who have.

          Not trying to be annoyingly pedantic here, but I believe (or at least hope) the word you were looking for is "prosecute", not "persecute". There is quite a difference in definition.

          Then again, maybe "persecute" is the right word for this discussion.

        • Re:nice... (Score:5, Insightful)

          by Narpak (961733) on Monday March 30, 2009 @11:53AM (#27389247)
          As I see it, overreactions like this happens because politicians, bureaucrats and the justice system, all want to appear like they are taking Steps to remove the crime of child abuse. A noble cause no doubt about that (which is why it is so easy to adopt for those wanting favourable attention); unfortunately combating child abuse is difficult. Difficult because in many cases all they can do is investigate and prosecute perpetrators after instances of abuse has already happened. Therefore they try to find other ways to scare would be criminals and to beat their own drum in the process; writing laws that are supposed to protect children from abuse. But sometimes, what seems good on paper ends up punishing the innocent along with the guilty.
      • Re:nice... (Score:5, Insightful)

        by Shadow of Eternity (795165) on Monday March 30, 2009 @10:59AM (#27388439)
        Don't forget that they will very likely be tried as adults because they were fully capable of understanding the nature and consequences of their actions for something that is only illegal because they are NOT capable of doing exactly that.
        • Re:nice... (Score:5, Funny)

          by Tom (822) on Monday March 30, 2009 @11:18AM (#27388679) Homepage Journal

          That's an excellent point. So often, the good questions are simple: How can you be tried as an adult for having "child porn" of yourself?

          Maybe the law has finally found quantum physics. You know, Schrödinger's Defendant - she's both adult and a kid at the same time, at least until a judge looks. :-)

          • Re:nice... (Score:5, Funny)

            by Shadow of Eternity (795165) on Monday March 30, 2009 @11:28AM (#27388843)
            I can't wait till someone gets the bright idea to try as an adult someone under the age of consent for child molestation because they masturbated in an empty room. They'll need to install a revolving door onto the stand for all the times that poor kid'll need to get off and back on again.
        • by Slashdot Parent (995749) on Monday March 30, 2009 @11:25AM (#27388769)

          Don't forget that they will very likely be tried as adults because they were fully capable of understanding the nature and consequences of their actions for something that is only illegal because they are NOT capable of doing exactly that.

          That's not why child porn is illegal. It can't be.

          Consider: I'm (significantly) over 18 years of age, so the law assumes I understand the consequences of my actions. That includes knowing the consequences of distributing pornographic images of myself, which I have the legal right to do.

          Hypothetically, let's say that before I turned 18 and instantly became aware of the consequences of my actions, I took some photographs of myself masturbating, but never distributed them. It would be patently illegal for me to distribute (or even possess them) them now, despite my being well over the age of majority, because it would be child pornography.

          If the child porn laws were merely about protecting those who don't understand the consequences of their actions, it would be legal for me to distribute those photos at the present time, because I am deemed (at present), to understand the consequences of my actions, and am in no need of such protection.

          • by canajin56 (660655) on Monday March 30, 2009 @11:59AM (#27389349)
            Actually, that's the only reason. It's illegal to protect children from abuse. That's why the Supreme Court tossed out laws against fake child porn, because no child was harmed. It would only be illegal for you to distribute them because showboating DAs want to show off how hard they are on pedophiles by executing you for having pictures of yourself naked. It's actually extraordinarily contrary to the laws as written, which fall all over themselves saying how these laws are there to protect children from being abused.
          • by JerryLove (1158461) on Monday March 30, 2009 @12:32PM (#27389911)

            Your conclusion is invalid because you falsely assume that the law will necessarily be written in a way compliant with what those who passed it attempted to accomplish.

            The fact is that most laws are written very sloppily, and can easily be twisted around just the way this one is.

            For an easy example: look at the kid in Georgia a few years back who got 10 years (since overturned by a change in legislation) for receiving oral sex from a girl a couple of years younger.

            They made an exception ("Romeo and Juliet" clause) for sex between an adult and minor where the age difference is small, but simply failed to use sufficiently inclusive language (making intercourse a non-felony, but not oral sex).

            As pointed out, the child-porn laws are unreasonable and getting worse. The thought that you can be prosecuted for possession of a picture of yourself is just one example. We *must* protect children (and I would argue a 16-year-old, while a minor, isn't a child; so there should be a difference as there is between "child molestation" and "statutory rape"), but we shouldn't do it by punishing the innocent... innocent at least of this.

    • Screwy laws... (Score:5, Interesting)

      by 0100010001010011 (652467) on Monday March 30, 2009 @10:28AM (#27387973)

      IN some states, the age of consent and child porn statutes have the same age limits.

      For instance, a quick read of NV law shows the AOC to be 16. Child porn is defined as sexually explicit blah blah blah involving a person under 16. Federal law makes it a crime with a person under 18, but there may be some state line/interstate commerce nexus that needs to be fulfilled.

      I didn't feel like looking at too many states, but found this same AOC/CP thing with NH-16/16.

      Many states forbid distributing/exhibiting obscenity to people under 18, regardless of their AOC/CP statutes.

      SO, excluding the feds, it's not a crime to have sex with a 16 year old or film it. But, she can't watch the tape afterward. It's a crime to allow her 16 year old friend to watch the act as it occurs, but not a crime to have her join. Neither of them can smoke a cigarette or have a beer afterward. If either one were to rob,beat,kill one of their fellow participants, they would be tried as an adult in every state in the country.

      - Stolen from a Fark thread.
      -----
      How old do you think your great-great-great grandparents were when the got it on?

      • Re:Screwy laws... (Score:5, Insightful)

        by MBGMorden (803437) on Monday March 30, 2009 @11:14AM (#27388619)

        If either one were to rob,beat,kill one of their fellow participants, they would be tried as an adult in every state in the country.

        Which is what I find (darkly) humourous in so many cases. We had a case a few months ago where an 8 year old boy shot and killed his brother (intentionally). Very sad event for the family naturally, but then the county sheriff was on the news, and actually said that they were going to attempt to try the boy as an adult if they could.

        Now, the crime aside, if an EIGHT year old is tried as an adult, does the distinction even serve a purpose anymore? What the age is, I don't know (I'm going to say 16 sounds nice personally), but I think that the transition age from child to adult should be FIRMLY and legally defined, and at that specific age all of the following become true:

        - you can legally have sex with any individual
        - you can legally participate in pornography
        - you can legally drive a car
        - you can legally have a beer
        - you can legally use tobacco
        - you can be legally drafted
        - you can be legally tried as an adult
        - and to hell with it, you can legally be president (the 35 thing is odd for me - I doubt anyone younger than this would make it anyways, but it's a stupid law IMHO).

        Again, there's room for debate on what that age should be (16 sounds good for me, but I could live with raising it to 18), but whatever the number, I think that all of the above events should occur at the same milestone.

        • Re:Screwy laws... (Score:4, Interesting)

          by dkleinsc (563838) on Monday March 30, 2009 @11:46AM (#27389115) Homepage

          I agree that trying kids as adults is silly.

          I disagree with your specific proposal, for the simple reason that either whoever reaches that age is going to go completely bonkers engaging in all those activities, or underage people will be trying some of that stuff out. Think of what are now 21st birthday parties combined with driving for the first time, smoking, and porn.

          What I prefer over a firm age limit is tests. For instance, you can legally drive when you can pass all the appropriate tests, regardless of age (and IMHO have to retest periodically). For stuff like beer and tobacco, the test would be on the health risks. For whether to try someone as an adult, I'd look for some sort of evaluation of whether the person's brain is an adult brain, not whether they've reached a certain calendar age. And so on.

          In short, age is an approximation of how mature someone is, and usually when it's used in laws like these it's done as a shortcut to figuring out a much more specific issue.

      • Re: (Score:3, Interesting)

        by mooingyak (720677)

        It's a crime to allow her 16 year old friend to watch the act as it occurs, but not a crime to have her join.

        Does that mean if the friend joins in, she has to keep her eyes closed the whole time?

      • by RulerOf (975607)
        From what I understand, minors are tried as adults in many cases because, assuming they committed the crime of which they're accused, they've taken on "adult" responsibilities by [allegedly] committing an "adult" action and should be treated as such.

        Is not sex one of those actions?

        I mean, I know people are becoming sexually active at younger ages (compared to the few previous generations, but certainly not humanity as a whole) but if sex is something that our laws deem fit to be an action that is defined
      • Re:Screwy laws... (Score:5, Informative)

        by canajin56 (660655) on Monday March 30, 2009 @12:04PM (#27389443)
        Naw, a judge has already ruled that a hacker from across state lines could break into your computer, so even possession gives the Feds jurisdiction. Thus, mere possession == distribution across state lines. In Florida two 16 year olds were tried as adults and convicted of distribution of child porn, even though it never left their computers, because it COULD have.
    • by u38cg (607297)
      Mmm. How exactly are these girls going to get anything approaching a fair trial under the circumstances?
    • Yes, but... (Score:3, Informative)

      by ChePibe (882378)

      No case has yet hit the court and, as such, there are no charges to defend against - only "threatened" charges.

      Once the charges are made, the prosecution will be required to furnish the photographs. As it is right now, they may be required not to do so under dissemination laws. This isn't terribly sinister, perhaps simply a stupid law.

      • Re:Yes, but... (Score:5, Insightful)

        by drinkypoo (153816) <martin.espinoza@gmail.com> on Monday March 30, 2009 @11:46AM (#27389117) Homepage Journal

        Once the charges are made, the prosecution will be required to furnish the photographs. As it is right now, they may be required not to do so under dissemination laws. This isn't terribly sinister, perhaps simply a stupid law.

        As it is right now, this is plain and simply blackmail. "You have committed a crime, I'm not sure exactly which one, but if you don't do as I say, I will prosecute you. By the way, I'm not going to show you the evidence, either." I'm not surprised people caved. But what they should have done was banded together...

    • Re:nice... (Score:5, Insightful)

      by Wrath0fb0b (302444) on Monday March 30, 2009 @10:37AM (#27388125)

      Skumanick won't show the pictures to anyone, including the girls' lawyers

      hard to prove your innocence if you're not given the chance to.

      This isn't a trial and nobody needs to prove anything at this stage, since no one has been charged with a crime. If he charged them, and if it went to trial, the pictures would be evidence that the girl's attorneys would be entitled to see at discovery. Just don't get too far ahead of yourself.

      Now, whether or not it's ethical for a prosecutor to threaten prosecution like this is a longstanding debate in legal academia. He has every right to bring them to court an attempt to prove to the jury that they have violated the law -- that's what prosecutors do, they bring charges to court and attempt to prove them. Also in their power is the option of making a plea deal with the defendants -- which is what happened here -- he didn't want a trial so he made them an offer for some probation. They refused, now the DA has to put up or shutup (there's also this preemptive Federal lawsuit, which I think is destined to fail).

      Of course, the real motivation here ought to be for the legislature to amend the law to define child pornography in a more sensible way but they have a good track record of messing these things up, so I'm not holding my breath. Oh, and if you live in that county, you could vote for a DA with better priorities. Maybe. I don't know who the other candidates are/were.

      Finally, a word of advice to the kiddies: the law might be stupid, but you should probably follow it. To the letter. Many on /. will probably revile the idea that we ought to follow such stupid laws, but you have to chose your battles (something the DA ought to learn) and this one just doesn't seem worth taking a stand for.

      • Re:nice... (Score:5, Insightful)

        by MikeBabcock (65886) <mtb-slashdot@mikebabcock.ca> on Monday March 30, 2009 @11:49AM (#27389173) Homepage Journal

        You can't follow the law sufficiently to avoid being charged with something. Police can and will find a reason to charge you with something if they really want to. There are quite a few laws on the books that exist only to make these things easier for actually charging someone while they try to get other, more serious charges added to the list.

        The only thing you can do is hope to never end up on the wrong end of a police officer or DA's campaign against something. Some day being a goody-two-shoes might get you on the wrong end of an officer's personality and get you charged with something benign just to make him giggle.

        There are no legal guarantees. Retain a lawyer.

        • Re: (Score:3, Insightful)

          by NeutronCowboy (896098)

          There are no legal guarantees. Retain a lawyer.

          And since lawyers routinely ask for a $5000 deposit for anything beyond initial consultation, this is a viable solution only for somebody who considers $5000 to be pocket change.

          In other words - you better be rich, or hope you don't piss someone off.

      • Re: (Score:3, Interesting)

        by Chris Burke (6130)

        Of course, the real motivation here ought to be for the legislature to amend the law to define child pornography in a more sensible way but they have a good track record of messing these things up, so I'm not holding my breath.

        Forget the tendency of politicians to muck things up even in those strange circumstances where their intentions are noble.

        This will never happen, because "more sensible" in this case means "less draconian and Kafkaesque" and thus it'll never fly past the "Think of the Childrens!" crow

    • Re:nice... (Score:4, Insightful)

      by Brooklynoid (656617) on Monday March 30, 2009 @10:50AM (#27388301)
      Actually, here in America, you don't have to "prove your innocence." You're presumed innocent, and it's up to the prosecution to prove you guilty.
    • Re:nice... (Score:4, Insightful)

      by PhxBlue (562201) on Monday March 30, 2009 @10:57AM (#27388415) Homepage Journal

      hard to prove your innocence if you're not given the chance to.

      Fortunately, defendants aren't required to prove their innocence in court -- the burden of proof lies with the prosecutor. And I can't imagine a judge that would take this seriously if the prosecution refused to show its evidence to the defense attorneys.

    • Re:nice... (Score:5, Insightful)

      by Zero__Kelvin (151819) on Monday March 30, 2009 @11:03AM (#27388485) Homepage

      "hard to prove your innocence if you're not given the chance to."

      I know. We should move back to a system where the accused do not have to prove their innocence, but the accusers have to prove guilt.

      "Skumanick won't show the pictures to anyone, including the girls' lawyers"

      This is called denial of exculpatory evidence, and is solid grounds for a complete case dismissal. So why would the DA do such a thing? He's probably afraid an independent lab will find DA DNA.

  • by fuzzyfuzzyfungus (1223518) on Monday March 30, 2009 @10:22AM (#27387881) Journal
    In practice, I suspect that the DA just consulted the "Contemporary Community Standards" that he keeps in his pants.
    • Re: (Score:3, Funny)

      by Anonymous Coward

      In practice, I suspect that the DA just consulted the "Contemporary Community Standards" that he keeps in his pants.

      IF relevant to my interests
      THEN fap
      ELSE ban
       
      /but what if the DA doesn't like redheads?

  • by Anonymous Coward

    Post the pictures on Digg. The legality of the pictures will be inversely proportional to the number of Pedobear sightings.

  • wtf is sexting? (Score:5, Informative)

    by aztektum (170569) on Monday March 30, 2009 @10:24AM (#27387907)

    a summary that long dedicated to whatever the fuck it is and no actual definition. [wikipedia.org]

    at first I thought it might be a "sex sting". turns out it is sending pics of your "naughty bits" via camera phone.

  • by russotto (537200) on Monday March 30, 2009 @10:28AM (#27387967) Journal

    The DA is threatening to file felony charges against three girls for taking pictures of themselves. There's no wiggle room; the guy IS an unreasonable buffoon, and excuses like "context syndrome" don't help.

    • I'd like to point that the US is far more conservative about pornography and sexual depictions than most Western cultures. Showing a nipple here on broadcast TV gets you fined by the FCC. After primetime TV hours in Western Europe you'll see lots of things. In Nice, France, you'll see whole families nude including grandma, grandpa and baby in the summer time. And if you're ever seen Japanese TV,*shudders*
    • Re: (Score:3, Insightful)

      by arb phd slp (1144717)

      Isn't this in the same state where private prisons have been giving kickbacks to elected officials for convicting more kids and sending them to prisons?

      http://www.cnn.com/2009/CRIME/02/23/pennsylvania.corrupt.judges/ [cnn.com]

      Just sayin'... I'm not actually accusing the prosecutor of anything. (I'm just allowing context to do its thing).

  • Interesting idea (Score:5, Insightful)

    by ratnerstar (609443) on Monday March 30, 2009 @10:33AM (#27388057) Homepage

    It is an interesting idea, and it might even work in theory, but I doubt it will ever be widely used. Why? Because you'll have a hard time convincing people to send possible child pornography off to be examined by a bunch of anonymous experts.

    In the case of "sexting," where oftentimes the defendant and the victim are the same person, maybe it would pass. But if Joe Blow is charged with distributing dirty pics of Jenny Junior, I doubt Jenny's parents will be okay with those pictures being shown to even more people. There's no incentive for them to compromise, since people are routinely convicted on child pornography charges without this process.

    This whole thing would probably have to be legislated anyway. How many state legislatures, not to mention the US Congress, will be willing to go out on a limb to (it will be said) protect child predators?

    The solution to the "sexting" problem is common sense and prosecutorial discretion. Hopefully we'll see more of both!

  • ... and I ran here. Does that make me a bad person?

  • by dkleinsc (563838) on Monday March 30, 2009 @10:37AM (#27388127) Homepage

    determine whether a picture constitutes child pornography

    We don't have a scientific or legal definition for whether a picture constitutes any sort of pornography, other than Oliver Wendel Holmes' "I know it when I see it".

  • by davidwr (791652) on Monday March 30, 2009 @10:37AM (#27388131) Homepage Journal

    Child porn cases can be divided by two dimensions: The photo and the context in which it is possessed.

    You can objectively decide the photo: It's either clearly porn, clearly not porn, or in the hopefully-narrow grey area where some local courts or experts applying local community standards would it is and some would say it isn't.

    You can objectively decide based on the context: Is this a parent with a childhood photo album that happens to contain half a dozen bathtime pictures, one of which has the child appearing to be masturbating, mixed in with hundreds of non-bathtime pictures? Is this a parent with an album of nothing but bathtime pictures most of which have the child masturbating? Is this an adult with pornographic pictures of himself he inherited from his parents? Is this a teenager with pornographic photos she took of herself? Is this a teenager with pornographic photos his girlfriend let him take? Is this a 30 year old with pornographic pictures of kids he doesn't even know? Is this a 30 year old with pornographic pictures of kids he doesn't even know stored in a locked vault in his office at the FBI, with carefully controlled access to the files in the vault?

    Clearly, the FBI is allowed to have such pictures for official use. Clearly, the typical citizen is not allowed to have such pictures of kids that aren't his own without a very good reason, and possessing them is more than likely a sign that the person has criminal tendencies. While not as crystal clear, it's fairly clear that even a parent shouldn't have an album full of such pictures without a very good explaination, for the same reasons. The teenager, teenager's boyfriend, the now-grown child with inherited photos, and mom or dad with a single pornographic "cute kid in bathtub playing with his/her genitals" picture out of many innocent ones are much more likely to result in acquittals or public outcry at overzealous prosecution, even if the picture itself is objectively clearly pornographic. Why? Each of them can claim a moral right to take and/or possess the photos, and each can legitimately claim that possession of the photos is not an indicator that they are a danger to society. In other words, they are very sympathetic defendants.

    • by NtroP (649992) on Monday March 30, 2009 @11:21AM (#27388719)

      I don't know. At the risk of being branded by knee jerk reactionaries, I have a hard time with the concept that the photo itself is the illegal part. Simply seeing the photo is deemed to have committed the crime whether or not you keep it, distribute it, etc. If, for God knows what reason, have a collection of photos of murder victims, torture victims, what-have-you, somehow they are perfectly fine. It's the original act that is abhorrent and illegal. Yet somehow if I even *see* a picture of a 14 year old's naked form I'm committing one of the most heinous crimes you can commit today.

      *IF* a child was exploited or harmed in the making of the photo the exploitation or harming of the child is what should be deemed illegal. If someone paid someone else to assault the child they should be tried under that crime. Everyone goes on and on about how they are just trying to kill the "market" for this material. Yeah, right. First of all that argument is very tenuous in 99% of the cases and second, we've seen what that kind of tactic has had with the drug wars.

      Listen, whether they admit it or not, almost everyone on slashdot knows how and where to get CP. If we do, don't you think the authorities do? If we can track down the hosters and owners of these websites why can't the feds? I get the impression that a lot of this brouhaha is hand-waving and a smoke screen for a different agenda. (see my sig)

      I think child exploitation is abhorrent, but in this sexting case and in may other cases like it the only ones doing any exploiting are the prosecutors. I wonder sometimes if they don't get so light-headed and guiltily excited at seeing those pictures that they feel there must be something wrong with the pictures - otherwise they'd have to admit there might be something wrong with them.

  • Evolving Standards (Score:5, Insightful)

    by cephus (1471105) on Monday March 30, 2009 @10:38AM (#27388139)

    The concept of picking the illegal photo from a lineup of legal ones is a good one, but it will inevitably lead to a slow migration of the legal standard to an ever more permissive definition of provacative. In order for a photo to be consistently selected from the lineup it would have to be significantly more provacative that the legal ones. Any photos that were only sligthly more provacative would not be identified and would therefore become part of the suite of photos that had been determined to be legal.

    • Re: (Score:3, Interesting)

      by dsoltesz (563978) *

      I don't have much hope for this in a country where a girl in a bikini is ok, but a girl in a bra and panties is indecent, even though she is equally covered in both outfits. In some places in this country, it's okay for both men and women to bare their chests, yet in other places (including the airwaves) bare chested women are considered indecent and obscene. During some fashion trends, young women have been vilified for exposing their belly buttons (e.g., the Britney Spears look). Some school dress codes d

  • This article reminded me of the book "An introduction to general systems thinking" by Gerald Weinberg. Wikipdia [wikipedia.org] has an article on systems thinking.

  • The real test (Score:5, Insightful)

    by evanbd (210358) on Monday March 30, 2009 @10:47AM (#27388247)

    Was the subject abused or otherwise injured (psychologically or physically) by the photography? After all, child pornography laws are there to protect the children involved. If they took the pictures themselves, it's hard to make a case that they were injured.

    It seems to me that if they're old enough to take responsibility for their actions in creating the pictures, and therefore old enough to be punished for them, then they're old enough to have given consent.

    Sometimes, a test without context would be appropriate. In other cases, like this one, the context is sufficient to determine innocence without even looking at the pictures.

    • Re: (Score:3, Insightful)

      by TinBromide (921574)
      I was thinking about that earlier. Who exactly are we protecting these children from? I'm thinking of the children when I don't believe that dropping them onto a sexual offender's list for life is the best thing for them or the community. I think that the law should be changed where either the subject or the guardians of the subject should be able to press charges against the one who took the pictures, provided that the guardian was not the one who took them or influenced the kids to take them (to prevent s
    • Re: (Score:3, Insightful)

      by jandrese (485)
      What if the victim is psychologically injured by the overzealous prosecution of their otherwise common teenage behavior?
  • by johannesg (664142) on Monday March 30, 2009 @10:47AM (#27388249)

    The article claims it is about childporn, but the story reminds me more of the kind of sexual repression of young people that I normally associate with countries like Iran...

  • talk to a judge (Score:3, Insightful)

    by Goldsmith (561202) on Monday March 30, 2009 @10:51AM (#27388309)

    Lawyers and judges do run experiments like you suggest (at least, the good ones do). Judges are generally encouraged to take classes which look at case studies (that is what you are talking about) of types of cases they're commonly trying. There are many social scientists who have made their careers studying how people interact in a court room and whether or not a particular procedure is fair.

    Go sit in the audience for a court case. You'll find that lawyers absolutely can not just argue about things. The "case" which a lawyer makes is from evidence and experts, not opinion. They often bring up expert witnesses, and can have whole panels of experts look at evidence and interpret it. The defense lawyers in the case you bring up absolutely will have access to the pictures and will have a panel of experts evaluate them, should this ever go to trial. Anyone who's been on a jury for a DUI has seen how this works, as a good prosecutor will have a medical expert describe how alcohol enters the blood stream, how long it stays there and what the effects are. A good judge would not allow a lawyer to simply assert any of those things.

    As a "hard" scientist, I would point out that what you're suggesting is not objective. It's fine to have a science of law, but it is a subjective science. Please don't assume that because someone is "an expert", they are an unfeeling automaton. Any measurement which requires the judgment of a person is subjective.

  • by locker1776 (463385) on Monday March 30, 2009 @10:51AM (#27388311)

    IAAL

    The whole purpose of child pornography laws is to protect the minor victim.

    Under the law, a minor child CAN NEVER give consent to a sexual act. Period. There are exceptions for teenagers with other teenagers, but beyond that there is no exception (hence statutory rape laws). The whole point of making child pornography possession illegal is to get around the loophole of "I have a picture of an illegal act, but you can't prosecute me because you do not know who is in the picture."

    Now when you actually KNOW who was depicted in the picture, and the circumstances surrounding the picture, you can make a determination as to whether the underlying sexual offense has taken place.

    I find it impossible to comprehend the charging of a minor for possession of THEIR OWN PORNOGRAPHY!!! We are now prosecuting the person whom the law was written to PROTECT!!!

    The question should not be "is it pornography?" The real question is "was the person who is shown in the photograph illegally exploited?" That is a much simpler question to come to terms with, and by ignoring that question, you make a mockery of the legal system.

  • Idiocy. Again. (Score:5, Insightful)

    by girlintraining (1395911) on Monday March 30, 2009 @10:51AM (#27388319)

    Okay, first, you can't "scientifically test" people's sexual mores. It's a question of taste, culture, environment, and context. Second, the definition of pornography has long been held to be something along the lines of "You'll know it when you see it." This has actually been used as the legal test in many courts in this country. Third, people are stupid frothing-at-the-mouth retarded and lobotomized flatworms as soon as they become emotionally engaged in a social problem, and doubly-so when it involves criminal charges.

    The legal system is a crap shoot. As a defendant you can be hung even if you make completely honest statements. False witnesses, poor quality of evidence, lack of evidence, or (god help you) eyewitness testimony, etc., can all destroy the credibility of a defendant who is completely honest on the stand. If you excercise your fifth amendment rights, the jury will pretty much hang you on that basis alone -- nevermind the VERY strong legal arguments for doing so (even if you're innocent). Not only that, but did you know that in something like a quarter of rape cases where the defendant was later aquitted based on DNA evidence -- they admitted to the crime? Not that YOU would ever do something like that, but why do you suppose they did it? And let's not even get into over-zealous prosecutors, incompetent judges and attorneys, "lost" or witheld evidence from the police department--because we all know they aren't human but in fact infallable robots who never make honest mistakes, let alone malicious ones. Did I mention that a lot of people plead guilty to lesser offenses simply because they don't want to deal with the hassle and stress of a trial? A lot of people do this. Think of when you got a parking ticket or speeding ticket -- after venting about how you're going to fight the man, etc., and how the cop was just singling you out, etc... How many of you knew you weren't guilty but decided to give in anyway and pay the fine just because it was easier than a fight and the risk of losing and having to pay even more (and pay you will, Citizen).

    In the majority of cases, the trial is over before it even starts. And people don't learn -- it doesn't matter how many innocents they throw to the wolves, because in their mind they're justified for doing so "because we got a few bad guys doing it too!" People are irrational, emotional, slathering rat-beasts. And they're stupid. Just realize how stupid the average person is and then realize that half the people serving on your jury will be stupider than that. Oh, and the icing on the cake? I don't know you, but I'm sure you've committed an arrestable-offense today. There is no person on the planet who can understand and follow all the laws we've created. And there are so many of them, that the odds are incredibly good that you've broken at least one of them. So all of you are criminals. We just haven't caught you...yet.

    Lastly, consider this: What if one of these girls had been a boy instead. Ah, but justice is blind they say.

  • Easy Question (Score:4, Interesting)

    by Doc Ruby (173196) on Monday March 30, 2009 @10:55AM (#27388383) Homepage Journal

    If the people in the picture are younger than the age at which they can legally consent to having that picture taken, then that picture is illegal. If it's a picture of sex or nudity, then it's child pornography.

    It's an easy question if the law protects the subject of the picture. Protects them from the original event, where they're having sex or being naked in a way that exploits them. And protects them from the damage to their reputation and self image that distribution of the picture does. Easy question, simply the age and pose of the subject.

    If you're making a law that punishes sinners for lusting after a child, then it's a hard question. You've got to make the law prohibit depictions of children who don't exist, like in comic books [huffingtonpost.com]. You've got to prohibit pictures of adults (un)dressed like children. And probably all kinds of other things, chasing the perversion in the minds of perverts, notoriously non-uniform in what's in their minds to prohibit.

    That kind of question should be hard, because it's a waste of time. The government's business isn't policing sin, but protecting children. That legit business is mercifully much easier, while still hard enough that it needs to be done by professionals when parents fail.

  • pics... (Score:3, Funny)

    by rmadmin (532701) <rmalek@@@homecode...org> on Monday March 30, 2009 @11:03AM (#27388489) Homepage
    or it didn't happen...
  • better method (Score:5, Insightful)

    by Tom (822) on Monday March 30, 2009 @11:11AM (#27388575) Homepage Journal

    Perhaps someone can think of a better method that is still roughly scientific,

    Yupp. Don't make thinking illegal.

    This is part of the whole "victimless crime" item, except that in the vast majority of cases, you can not even establish probable danger.

    If I am speeding on a safe, empty road, I'm not really putting anyone at risk except me, but you could argue that there might be a child hiding at the precise tree I'll be slamming into, or someone somehow gets in front of me without me noticing quick enough - etc. Short version: While in that actual situation nobody might have been harmed, a small modification of the situation creates plausible danger, hence you could argue my speeding needs to be punished.

    Now try to extend that to someone looking at cartoon characters fucking. Uh, wait, seemingly underage cartoon characters (whatever that means) fucking. I challenge you. Which small modification of the situation causes harm or puts someone at risk?

    There's no risk here. Not even a theoretical one. AFAIK the often provided "looking at drawings that look like a 12 year old doing naughty things causes children to be harmed for more porn production" line has no scientific evidence for it whatsoever. In fact, all evidence we do have suggests that the more you suppress sexual desires, the stronger they will erupt when the barrier falls.
    Quite honestly, my personal belief is that these kiddie-porn-crusaders are probably causing more actual damage to children than the vast majority of those who enjoy sexy cartoons.

    In the end, though, this is a lost cause. Evidence, truth and justice are not on the agenda of 99.99% of the people involved. Just look at the lineup. Politicians, lawyers, policemen. All people who stand to profit from more laws, more complicated laws, broader laws and more difficult to decide legal cases.

  • Salem Witch Trials (Score:5, Insightful)

    by Kupfernigk (1190345) on Monday March 30, 2009 @11:26AM (#27388797)
    It's hard to avoid thinking that this case looks a bit like the Salem Witch Trials, but recurring as farce rather than tragedy. Since Classical Athens, there have always been societies that have an undercurrent of gynophobia and repression of women in general. Rather than apply this proposed test, at vast expense, what we need is for all legal staff involved in the prosecution of cases where there is a sexual element to undergo psychiatric screening to ensure that their desire to prosecute women and girls isn't, itself, a sexual perversion.
  • Nudity = Child Porn (Score:4, Interesting)

    by Bragador (1036480) on Monday March 30, 2009 @11:26AM (#27388803)

    I tested this on the net, mainly to troll but also for curiosity. I went to 4chan and posted a picture of a young girl taking a bath. You could only see the face since there was soap everywhere. I followed by posting a picture of a nude family walking on the beach and was permanently banned in the following minute. So I stopped my experiment right there. If /b is disturbed, imagine how the rest of the world would react...

    I can confidently conclude that nudity equals child porn now, so I'm not surprised by this trial at all. This is what society wants.

  • by commodore64_love (1445365) on Monday March 30, 2009 @12:13PM (#27389571) Journal

    It doesn't matter if the photo you received is a 50-year-old Valerie Bertinelli, a 16-year-old Miley Cyrus, or a 6-year-old Elle Fanning. The naked human body is not a crime. It is God's masterpiece. It is Natural, not sinful.

    The only time a crime has been committed is if the photo shows penetration or oral gratification, and only if the person is younger than 18, since minors are not allowed to have sex.

    • Re: (Score:3, Insightful)

      by yoshi_mon (172895)

      It doesn't matter if the photo you received is a 50-year-old Valerie Bertinelli, a 16-year-old Miley Cyrus, or a 6-year-old Elle Fanning. The naked human body is not a crime. It is God's masterpiece. It is Natural, not sinful.

      That is where you lost me.

      You realise that religion is the key cause of nudity being illegal right?

  • by aaandre (526056) on Monday March 30, 2009 @01:36PM (#27390809)

    Where are the interviews with the children? Where is their say in this situation? After all, they are the victims of their own crime, right?

    This is a wonderful example of parenting being done to children, not with children. Adults are freaking out of control and exercising their power to dominate the children's lives without a real need apart from the adult's emotional insecurity.

    I wonder how are the girls and their classmates feeling after their private lives were taken into the spotlight? Their childish (not very well thought out) actions judged and classified as child pornography acts?

    Yes, maybe it is not direct sexual abuse. But how does the violation of their privacy feel? And yes obviously they took these photos and distributed them themselves... not to their teachers / principle, though.

    How can we be sure that at least one of the adults involved is not secretly getting sexual / emotional gratification from the photos AND the emotional violation/domination, safely hiding behind the facade of "caring for the children?"

    What do the children have to say about this? If the goal of this investigation is to protect children from abuse then let's talk to the children involved and find out if they feel better and safer after the investigation.

    If this is not the case, then maybe the investigation is catering to a different agenda.

  • by e-scetic (1003976) on Monday March 30, 2009 @04:09PM (#27392783)
    I'm pretty sure anyone with a porn collection unintentionally has at least a few photos of underage people. Trying to determine age can be damn tricky nowadays. Likely almost everyone on slashdot can be charged with possession.
  • by GRW (63655) on Monday March 30, 2009 @05:13PM (#27393589) Homepage Journal
    How can a law that was created to protect minors from exploitation be used to punish those whom it was designed to protect. Punishing a minor for a picture that she took of herself is like charging someone with attempted murder for engaging in high risk activities that could potentially result in their own death.

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