Two teens, aged 16 and 17, took racy photos of themselved having a bit of fun. The photos somehow found their way to the police (by way, perhaps, of their overzealous parents). The two teens were prosecuted for, and convicted of, creating child pornography. The 'children' in question? The two teens themselves. The law was used to punish the very people it was meant to protect. This is a crystal-clear example of how zealots in law enforcement and the justice system abuse the legal system to promote their narrow Puritanical world-view.
In Florida, it's perfectly legal for two people the ages of these two teens to have sex. This means that it's okay for teens to have sex, but it's a crime if they document it. This ridiculous situation arises out of the vast divide between how the law is written and how the real world actually works. People past the age of puberty are going to have sex. That's just a fact of life, and there's no point in trying to fight it. Denying that teens will have sex is like sticking one's head in the sand. Denial is not a basis for sound public policy.
The law seems to have been written based on the assumtions of a world before the arrival of the internet and digital cameras. These outdated assumptions no longer hold, and for this reason alone, the law is is poorly suited to the real world conditions today.
There was a time not too long ago when it wasn't possible to take intimate photos without exposing them at least to the staff of the local photo development lab. This no doubt discouraged many who might have otherwise liked to take racy photos from doing so. But with digital cameras, people can take private photos without having to rely on a stranger to develop them. Millions of people are taking photos today that they wouldn't have considered taking a few years ago.
When the photos are on a computer, it's also easier than ever for people to share them. In the case in question, the two teens emailed the photos from one of their email accounts to another, and did not appear to intend to share them with anyone else. But of course other people might chose to share similar photos with their friends, or even with strangers.
The judge writing the majority opinion in the case explained his descision by claiming that the teens could have sold the photos. To me it seems silly to punish someone because something he created could potentially be abused. If it's selling of the photos that the judge wishes to punish, then why punish the teens? Why not instead punish any eventual act of selling the photographs?
The judge also claimed that the very existence of the photos could cause shame and psychological trauma to the teens involved, and that they lacked the maturity and wisdom to understand the consequences of their actions. If the photos were to be disseminated, the judge argued, then it could cause irreparable harm to the teens' future lives and careers. It seems to me that the act of prosecuting the teens, and dragging them through a lengthy and expensive court battle, causes much more damage than the original photos could possibly cause. First of all, if public attention is something that is inherently damaging and shameful, then drawing more attention upon the matter cannot help.
Secondly, there is no objective standard for judging things like psychological trauma. Yes, it's possible that the photos might cause embarrasment to the teens. But how much of this is due to the photos themselves, and how much is due to the people telling the teens how they ought to be ashamed of themselves? The Puritanical anti-sex fundamentalists would have us believe that sex dirties all things it touches. What if the teens fully appreciated what they were doing and were not ashamed? What if they were proud to be a couple, and just wanted to memorialize their expressions of affection for one another? What interest does the state have in telling them they should be ashamed or that they should feel traumatized?
Thirdly, as with some other crimes, (like casual use of marijuana) it is hard to see who the victim of the crime is. Yes, the law sometimes has to protect people from their own lack of judgement. But this time, the law punishes the very people it is supposed to protect. It's hard to see the value in the whole exercise when it is the law itself that is the source of the majority of negative consequences brought upon those prosecuted under it. The very act of criminalizing something brings with it significant costs. In this case, the costs are hard to justify.
Most governments have equally lofty goals, but how they go about reaching those goals varies a lot from place to place. Living in Sweden for more than seven years has given me some valuable insights into how governments attempt to accomplish their goals. In Sweden, people are often treated as though they are all children. I'm a fiercely individualistic person, so it's ever more difficult for me to have understanding for the sort of thinking that says people have to be protected from themselves. Sweden is also fond of punishing the many for the sins of the few. The high taxes on alcohol are a good example of this. A libertarian at heart, I have a hard time understanding the argument that it's a good idea to criminalize xyz just because xyz could have negative consequences.
But America isn't perfect either. It's painful for me to watch as millions of American youth are taught to be ashamed of sex. Remember the judge's quip about psychological trauma? Well, repression of sex causes more psychological trauma than does sex. And nevermind psychological damage. What about objective measures of how well a country is preparing its youth for responsible sexuality? Just look at the rates of teen pregnancy of sexually-tranmitted diseases in the U.S., and compare them to the same figures for just about any other industrialized nation. Repression also gives rise to perversion. Just look at Japan: here's a state where sexuality is strictly controlled, and it is this very repression (combined with a culture of extreme patriarchy) that has given rise to some of the most degrading pornography in the world. Sexual repression causes much more harm than good.
So how do we fix it? For one thing, parents have to stop living in denial. As soon as their children hit puberty, they're going to start getting interested in sex. There's no point in pretending that this isn't the case. Our children deserve love and respect, and we can't give this to them by pretending they are asexual creatures. Parents should teach their children about sex not only so that they can make good decsions for themselves, but also so that they can understand and respect the views of others. Parents need to teach boys especially to respect girls as more than mere objects of desire.
But also, the law needs to grow up with the rest of the nation. Laws that draw a bright line between child and adult are blunt instruments applied to delicate problems. The real world is complicated, and there are gray areas. For one thing, teenagers are sexual creatures and there's no point in trying to criminalize teenage sexuality. Laws intended to protect children from being taken advantage of sexually are often ill-applied to older teenagers. Age-of-consent and child pornography laws should be updated to allow for the fact that different people mature at different ages, and that physical and emotional maturity arrive at different times in different people.
The law should concentrate on punishing those who commit actual abuse, such as those who use their position of authority to take advantage of youth. In Sweden, for example, the difference in age between the two people makes a difference to whether sexual relations between them can be considered statutory rape, as does whether the older person is in a position of authority. This is the sort of flexibility needed to make the law appropriate for situations in the real world.