Have Vermont’s lawmakers, who are currently debating a law that would give immunity from prosecution to teenagers engaged in "sexting," been infected with a rare outbreak of common sense? Or are their best efforts still not good enough?
What, too, of Massachusetts legislators, who seem determined to turn the censorship dial in the other direction, making it a crime to look at porn featuring old people and the disabled?
The issue that Vermont is trying to get to grips with is that of teenage "sexting” - the practice of teenagers using digital technology to take lewd pictures of themselves and sending them to either friends or partners. The problem is that the number of such cases has been on the increase, and the legal response in many states has been to prosecute the picture-takers under legislation designed to deal with paedophiles.
The result is that a 14 or 15-year-old girl, whose only motivation – if she had thought about it at all – was to give her boyfriend a pleasant surprise, may now find herself branded a paedophile and added to a list of sex offenders. It goes without saying that the job prospects of such an individual are marred for life.
In an explanation that suggests he almost gets it, Chittenden County State’s Attorney T.J. Donovan said: "We don’t want to condone it. We need to educate. But there’s no public interest in labelling them as sex offenders for engaging in a perverted, albeit new, form of courtship."
He cited a case where a 14-year-old girl "flashes" her 18-year-old boyfriend while the two are in the same room, but the couple refrain from sexual contact. No crime would have occurred. Why, then, should either partner face child-porn charges if the girl snaps a nude picture of herself and sends it via cellphone to her boyfriend?
"The technology makes it the crime," Donovan said. "The act here is sending the photo. There’s no sexual act performed."
The real issue is whether the law needs to be involved at all. A seminal report on this issue in the UK – "Setting the Boundaries, 2000" – addresses the underlying question concisely: "We thought that it was inherently undesirable for young people to end up in court because they had been involved in mutually agreed sex with their 15 year old girlfriend or boyfriend. We wanted to find a way forward that recognised the undesirability of early sexual activity whilst offering help rather than punishment and a criminal record to those involved in it."
However, "if there was no law in place we could not deal effectively with situations which may not be serious enough to justify the more serious charges of rape or sexual assault. Every country in the EU has a law in place to deal with under-age sex, particularly where there is a complaint or exploitation."
Basically, rigid adherence to the Law causes difficulties (not least the fact that the majority of the UK adult population are probably guilty of committing an indecent assault at some point in their lives: its called "petting"). Over-codification of the law can create the same result.
The Vermont initiative is S.125 (pdf), a bill designed to expand the sex offender registry. It includes several provisions relating to sex-crime laws, prison policies and related topics, as well as a specific exception for individuals aged 13 to 18 whose only "crime" is to sext pictures of themselves to their partners. Whilst the Bill has already passed the Senate and the Judiciary Committee, it still has some way to go as critics worry about the power differential between the two ends of this age range, and the possibilities for exploitation.
Supporters believe they have now put in place sufficient safeguards. Is this commonsense legislation? Or would it have been even more commonsensical not to bring such prosecutions in the first place?
Head south from Vermont, and you come to Massachusetts. There, state legislator Kathi-Anne Reinstein, is backing a bill that will make it a crime to promote porn featuring elderly (over 60) or disabled people.
She explained her support for this move as "a no-brainer." Given the wave of criticism that this proposal has excited, that may be an unfortunate choice of words.
Clearly, exploitation happens, but the question in this case is whether this is once more over-broad legislation being brought in to play to deal with a problem that is mostly already dealt with by existing law.
Prominent civil rights attorney Harvey Silverglate believes it is. He said the proposal "amounts to blatant censorship" and is "unconstitutional." He added: "We’ve already got (laws) against coercion. Why is that not adequate?" ®