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Government, Govern Thyself
The purpose of anti-child pornography laws is to protect innocents from exploitation and humiliation, particularly by adults, but also by their peers. Ironically, these very laws — not the actions of the teens involved — are directly to blame for precisely that outcome in a case out of Cumberland County, North Carolina.
Via Reason — though I also recommend this article from the Fayetteville Observer, which has a number of important updates — two North Carolina high school students were charges with multiple felonies last month for exchanging and storing nude photographs of themselves and each other on their phones. The girl subsequently pled guilty to a misdemeanor charge and is on probation, but the boy is fighting the charges and potentially faces 10 years in prison and registry as sex offender.
A few details make the case particularly noteworthy and offensive:
- There is no indication that the photographs were disseminated beyond the couple until the male student’s phone was seized as part of a separate investigation involving misdemeanor property damage.
- The two were charged with “exploitation of a minor,” despite each being a minor at the time they made the photographs. More bizarrely yet, most of the charges against the teens were for having pictures of themselves on their own phones; i.e., each was charged for photographing and/or storing images of his or her own nether regions.
- The laws they are accused of violating are not merely identical to those pertaining to genuine child pornographers, but are in, in fact, the very same laws that make child pornography illegal. If you don’t believe me, see § 14-190.16 through § 14-190.17A of North Carolina’s Offenses Against Public Morality and Decency.
- The charging officer described the boy as cooperative and recommended he be released to his family (I’ve yet to figure out why this recommendation was subsequently ignored).
If Governor Pat McCrory and the North Carolina legislature want to protect minors from sexual exploitation, they could do worse than amending such dangerous and foolish laws.
Published in Culture, Law
Shame is all fine and good. Prison for doing the same things any kid would (and does) do is not. God only knows what any of us would have done if cellphones existed when we were teenagers.
And I’ve seen this sort of thing first hand. Prosecutors will ask for psychosexual evaluation/treatment as well, which is insane (as if any kid will be able to pay the thousands of dollars for that sort of thing). These laws are beyond ridiculous, and applying them in this sort of instance shows exactly why we don’t trust people with power. There are police and prosecutors – hell, there are even senators and presidents – who exercise restraint and judgment. But it is with those others in mind that we have to consider trade-offs, and erring on the side of limitation of power is a no-brainer.
Yes. Punishments in the school systems. Actually, if you put a no-phone policy on a teenager (any court could do this), you’re sending a pretty strong message in this era. Common sense is totally out the window, unfortunately, with a lot of our sex laws/application. Part of it – ironically enough – is parents needing to shift the blame away from their own kids, and our tendency toward over-victimization. Do we expect any less from a culture that gives us signed-consent anti-rape campaigns on college campuses? I envision it getting worse before getting better – although it may create some young libertarians, which wouldn’t be such a bad thing for this country.
I’d kind of like you to spend a night in jail and then think about having a teenaged son who might end up in a situation like this; then revisit this notion. There is much for you to be sympathetic about, and the idea that because we dislike the behavior we should lack sympathy for a grossly disproportionate response is the sort of thing that gives rise to tyrannies. I know that sounds hyperbolic, but I really don’t think it is.
Think about liberals responding to people who disagree with their politics – that person should lose his job, his livelihood; let’s ruin this person’s life.
This is a road that we should take great pains to avoid.
All that said (sorry for all the comments, Tom):
This is a pet peeve of mine. Look at DUI billboards that try the scare tactic “you face up to a year in jail and a 5000$ fine.”
Ok, that is the definition of a gross misdemeanor. The maximum punishment is 365/5000. 90/1000 for a misdemeanor. A first offense DUI is generally 24 hours, 2nd 30 days… after several, you’re looking at 6 months. Yes, that’s harsh, but a far cry from that stupid billboard. Your situation would have to be flatly amazing for you to end up with a year in jail. (this, for what its worth, is often so that courts can impose probation. If you violate probation, their punishment is suspended time. If you serve the max, the court cannot hold anything over your head.)
So the article is using some truth-bending, very likely, by saying 10 years in jail. These are still juries we’re talking about, and that’s simply not going to happen. Now, the sex registration is a huge deal that will haunt him for life, and that is no exaggeration.
It still bugs me that the 10-year sentence is even a possibility, but point conceded.
Well, the sentence maximum is a good thing but I agree with you in the sense that these laws are being somewhat “creatively” applied, and when prosecutors do that – even in instances where I like the result – that is prima facie overreach. Child pornography laws were clearly not designed with this sort of thing in mind, and while courts should certainly show some law-of-the-horse style adaptability with adults using cellphones, this is a difference in kind, rather than one of technique, and it requires it’s own law.
I disagree with manny who suggested that virtue required legislation – I’d use the same analogy that he did: how exactly is that different from liberalism? Embrace my values or else. Global warming, recycling, GMOs, logging, drilling, fur, hunting, same sex marriage… The libertarians are absolutely right. We give power to enforce the virtue we want, and that same power will be used to enforce the opposite next year. I propose the opposite. Virtue cannot exist when governments get to decide what is virtuous.
p.s. the implication of my “requires it’s own law” statement was that the sentencing guidelines should be much different for sexting vs. child pornography or exploitation. So yes. It’s good to have a max sentence, but if it’s one size fits all, we have a huge problem, and that’s where creative prosecution gets us.
…or alternative Greek currencies! ;)
Ryan I never thought I would agree with you this much. Great stuff.
To quote meatballs: “They have the drive and the equipment, but they don’t have the experience.”
In a similar vein this is why there are Romeo and Juliet laws, and the laws in this area similarly need to catch up. Otherwise, you have law enforcement chasing cases they have no business wasting time and tax payer money on, and the possibility of life changing punishment for activity almost nobody thinks should merit a misdemeanor let alone felony for rules that, while necessary and completely well intentioned, turn out to be casting an over-broad net.
I agree. Either change the law to specify or give the judge flexibility to impose a just punishment, and since you can’t create a law for every possible circumstance, I prefer to keep the number of laws down and give the juddge flexibility with age of the defendent, seriousness of the actual crime, and past history of the defendent. If you want to create a law for every circumstance, then I can accept that. I just think it makes the whole system burdensome.
Why is Reason Magazine highlighting such a local, parochial story? Because I can only surmise they have an overarching agenda. This is not the first of such articles from Reason. Given the whole Libertarian attack on police practices, their attack on policing arming themselves, given they seem to frequently side with violators of law over the establishment, I conclude Libertarianism intends to undermine law and order. Given I live in NYC where I saw the positive effects of the Guilliani “broken windows” tough on small time offenses policies, and given the current de Blasio disaster of repealing them, I think this excusing away little crime approach is all wrong. Law and order even for baby crimes enhances good society.
See my comment just above. Being deligent on small time offenses leads to a better society. I’ve seen it in NYC. Having that kid get some kind of punishment (not jail time) would be good for him and for society at large. Plus I believe that we have trivialized the nature of sex, and from a cultural perspective we need to draw lines of proper sexual conduct.
Yeah that evil overarching agenda called liberty.
Let me also add (I had reached a word limitation above) that given this whole current atmosphere of anti police and actual anti police shootings that either Reason is completely tone deaf to the attacks on law and order or they are in sympathy with it. I don’t mean sympathy to the police shootings, but a general sympathy against the legal system.
Whenever I get questioned on the need for order over liberty, I pull out the quote from the person who is generally acknowledged to be the first modern conservative:
Without order and virtue, you cannot have liberty. It will degenerate. This is a distinction between conservatives and libertarians.
Wow, this opens the door to pure evil.
The distinctions are significant, but I don’t think you’re accurately describing them. Painting in very broad strokes, libertarians and social conservatives disagree:
Again, these are very broad strokes, focused on the differences. Most conservatives have some libertarian leanings and many libertarians — but almost all of those on Ricochet — have many conservative leanings. If you drew a venn diagram, there’d be tremendous overlap, with some folks at the edges who have no overlapping ideas.
I wouldn’t go that far, though I’d say it unlocks the door.
I get where Manny’s coming from as a New Yorker who saw broken windows policing and comstat turn around a blighted city, but I think he’s also missing a lot. Those methods were arguably — perhaps likely — necessary to get the city back on its feet, but it’s highly debatable whether they’re still necessary, let alone that NYC has a smart, just set of small laws to enforce.
It’s also deeply offensive in how the city treats the 2nd amendment and refuses to allow honest, law-abiding citizens to protect themselves and their families. Order and security should not be the sole province of the state.
Thanks. It is broad strokes, I agree, and i know you are a very thoughtful Libertarian, but I’m not about to write a full length book to capture the nuances. Most of these forums deal with broad stroke argumentation. Thoughts are being written down from the top of one’s head.
There are much better ways to bring about order than ruthlessly enforcing jaywalking and speeding laws. Laws that practically everyone breaks without a second thought and would cause much worse outcomes if they were truly enforced. And yet, we’re all still here and order hasn’t disintegrated for lack of enforcing “baby” laws.
I agree that there are other ways, many of which are both more appropriate and better than those implemented in NYC in the 1990s. I know a number of fellow libertarians who were in NYC at the time who — criticisms aside — think broken windows was a huge part of the formula.
But again, having gotten the city back on its feet, it seems that NYC is in bad need of getting its laws more in line with liberty. Its absurd cigarette taxes, to take a famous example invite smuggling.
It’s bad laws like that — or the sexting-is-child-porn one I started this conversation with — that encourage lawlessness by making the legal system contemptible. That sort of thing should be of deep concern law-and-order types.
Answering both of you above, jaywalking and speeding were not part of the broken windows laws, though Gulliani did want to enforce jaywalking. People rebelled on that one. And neither was cigarette taxation. Cigarette taxation is a health issue, not a law and order issue, and probably a revenue generating issue. I oppose those excessive cigarette taxes, though supposedly they have reduced smoking. Wikipedia has a reasonably good entry on the Broken Windows Theory.
Afternoon Tom,
To get to the nub of “broken windows” watch Heather MacDonald https://www.youtube.com/watch?v=YFSBQrDg4gA, the difficult question is what is the cost of public safety, especially when the public wants public order.
Jim, I agree that broken windows did a lot of good in the 1990s.
The question is whether it’s worth the cost in all circumstances.
Is the broken windows theory really relevant to this discussion at all?
I thought the logic underpinning broken windows goes like this: serious criminals are also likely to commit many petty crimes, so by aggressively prosecuting those petty crimes, those potentially serious criminals are preemptively taken off the streets.
But the underage actors in this specific case are almost certainly not destined to be career criminals, but rather are simply your typical stupid, hormone-raged adolescents. Their profile is exactly wrong for broken windows-style prosecution, and would in fact likely turn someone who is law-abiding into a criminal through their time in prison.
Which, I suppose, is why we’re left going ’round and ’round, over the same ground.
This exactly. They took pictures of themselves and sent them to each other. This is not what those laws were intended for in any way shape or form. Like I said before, this is almost exactly like Age of Consent laws. You have to ask yourself, what is the purpose of these laws? Its to protect the young from being preyed on and exploited. Does arresting this girl and boy accomplish that? Absolutely not. In my opinion the law should change. Actually, scratch that, this is the sort of thing that prosecutorial discretion should be about, but because police and prosecutors can’t be trusted to use common sense, then the law should be adjusted to prevent this inanity.
One final thought, is this a foolish behavior by the boy and girl? Yes, of course it is. But just being young and dumb isn’t a crime.
I think the difference between us here is pretty slight, but you’re going to have a policy of permanently exempting a large class of people who regularly break a law from its enforcement, that’s a case for reform more than discretion.