Mia Kamal - Phone Sex 2.0

Journalism and Mass Communication Quarterly

Phone Sex 2.0?: The Intersection of Child Pornography and Juvenile Sexting

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Journalism & Mass Communication Quarterly

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Original Article Law and policy, Regulation < Internet and technology, Internet and technology, Social < Communication Effects

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Abstract:

Technology has changed the way teens communicate. No longer do they rely on using their parents’ house phones, knocking on each other’s doors, or waiting to see each other in school, but rather mobile phones provide instantaneous private communication for teens. In recent years, several cases have come up in courts about teens sending suggestive photos of themselves to others. This study investigates sexting cases as well as child pornography cases involving mobile phones to determine how courts have ruled on these cases based on their unique elements. Suggestions for future legislation are also included.

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Introduction If one were to search a newspaper’s archives for stories about child pornography, the results could be astonishing. For instance, in the Orlando Sentinel, there are stories about 57 year old men with huge stashes of child pornography on their computers, disturbing stories about toddlers, and all sorts of people in authority positions getting “busted” for their activities.1 One story stands apart from those.2 While second hand accounts attribute the original story to the

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Sentinel, the original story of Phillip Alpert does not appear on the newspaper’s webpage in the search archive. Countless other sources, however, have republished the account in other manners.3

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Phillip Alpert, 18, of Orlando, Fla. was dating a 16-year old girl in 2007.4 At one point in

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their relationship, she sent him naked pictures of herself. The two, as many teenage couples do, got into a fight. Angry, Alpert sought revenge. He hacked his girlfriend’s e-mail and sent the

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pictures to his girlfriend’s family and friends.5 Then, Alpert was charged with distributing child

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See e.g. Jeff Weiner, Orlando man blamed his kids after infant porn found on laptop, cops say (Nov. 2011) available at http://www.orlandosentinel.com/news/local/crime/os-child-porn-arrest-kids-blamed20111110,0,4436871.story; Stephen Hudak, Former FHP trooper sentenced to probation in child porn case (July 2011) available at http://www.orlandosentinel.com/news/local/crime/os-lk-plea-deal-in-trooper-childporn20110710,0,4364424.story. 2 Scott Travis, Sexting, Facebook can put students in danger, FAU expert warns (Sept. 2011) available at http://www.orlandosentinel.com/features/education/fl-internet-sexting-students-20110923,0,2831967.story. 3 See e.g. Deborah Feyerick and Sheila Steffen, 'Sexting' lands teen on sex offender list (Apr. 2009) available at http://articles.cnn.com/2009-04-07/justice/sexting.busts_1_phillip-alpert-offender-list-offenderregistry?_s=PM:CRIME; Vicki Mabrey, 'Sexting': Should Child Pornography Laws Apply? (Apr. 2010) available at http://abcnews.go.com/Nightline/phillip-alpert-sexting-teen-child-porn/story?id=10252790; Jordan Yerman, Florida teen Philip Alpert arrested in sexting case (Apr. 2009) available at http://www.nowpublic.com/world/florida-teenphillip-alpert-arrested-sexting-case. 4 Deborah Feyerick and Sheila Steffen, 'Sexting' lands teen on sex offender list (Apr. 2009) available at http://articles.cnn.com/2009-04-07/justice/sexting.busts_1_phillip-alpert-offender-list-offenderregistry?_s=PM:CRIME. 5 Id.

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2 pornography, given five years of probation, and required to register as a sex offender, something that will be with him until the age of 43.6 Brian Diefenbach, an editor with the Western Herald in 2009 argues that, “Alpert’s punishment does not fit the crime.”7 He claims, “This is one of those cases where the letter of the law overshadows the spirit. These sex offender laws are designed to punish people who commit sexual crimes against others, no matter their age.”8 Diefenbach does not argue that Alpert should not be punished for his actions. Rather, while Alpert undoubtedly caused his girlfriend

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emotional harm when he sent the pictures, in the courts, this situation was treated as if a 60 year old man forced a 4 year old to do inappropriate things while photographing it.9 News stories of people who have been arrested on child pornography charges indicate that the latter is the

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norm,10 but Alpert’s case raises an important question. Should states apply the same standards to the former?

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Journalists, state congressional chambers, non-profit organizations, and even the courts

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are involved in figuring out what to do about juvenile sexting. The current definition of sexting comes from a 2009 district court case in Pennsylvania.11 The background section of this case

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defined sexting as:

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The practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet. Typically, the subject takes a picture of him- or herself with a digital camera or cell phone camera, or asks someone else to take that picture. That picture is stored as a digitized image and then sent via the text-message or photosend function on a cell phone, transmitted by computer through electronic mail, or posted to an internet website like Facebook or MySpace.12 6

State v. Phillip Michael Alpert, No. 07-CF-0016350-O (Fla. Cir. Ct. 2008). Brian Diefenbach, Quotes and Comments, (Apr. 2009) available at http://www.westernherald.com/opinion/quotes-comments-76/. 8 Id. 9 See FLA. CODE ANN. 46 § 775.082 (2011). 10 See e.g. Weiner; Hudak. 11 Miller v. Skumanick, 605 F. Supp. 2d 634, 637-39 (M.D. Pa. 2009). 12 Id. 7

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Courts, having little knowledge of the practice themselves, relied on the plaintiffs, teenage girls, to explain to them what sexting was.13 Until recently, prosecutors have essentially been forced to apply child pornography laws, given that no other laws existed regarding this issue.14

Current Laws and Issues Currently there is a broad federal statute dealing with child pornography.15 Each state also has its own statute for dealing with child pornography.16 Within these statutes there are

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several inconsistencies, which become an issue not only when deciding what the ideal should be, but also in how to prosecute interstate crimes. Many states use the age of 1817 as a cutoff point

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for what is child pornography and what is not, however some states use 16 or 17,18 and Maine has a graduated system with two different types of crimes for children under 12 and children

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under 18.19 Further, the relationship between three key elements varies between states. While there are often elements of each part, the emphasis on production,20 possession,21 and distribution22 varies between states.

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With so many statutory laws and case laws floating around, it becomes easy to lose focus

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on the main question that should be asked of any statute: What was the intent of this law? Some statutes may have been enacted with different intents, but in a digital age when photographs can 13

Id. See e.g. Tracy Jacim, New ‘sexting’ law eases punishment for minors, (Sept. 2011) available at http://www.myfoxorlando.com/dpp/news/state_news/093011-Sexting-laws-ease-punishment-on-minors. 15 SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN 18 U.S.C. § 2252 (2011). 16 See e.g. IOWA CODE § 728.12 (2011); CONN. GEN. STAT. § 53a-193 (2011); CODE OF ALA. § 13A-12-192 (2011). 17 See e.g. ALASKA STAT. § 11.61.127; ARIZ. REV. STAT. § 13-3551 (2011); ANN. LAWS OF MASS. CH. 272, § 29B; COLO. REV. STAT. 18-6-403 (2011); IND. STAT. ANN. § 35-42-4-4 (2011). 18 See e.g. CONN. GEN. STAT. § 53a-193 (2011); ILL.COMP. STAT. ANN. § 720 ILCS 5/11-9.1 (2011); LA. STAT. ANN. § 14:81.1 (2011). 19 See ME. CODE ANN. § 283-17A-2-12. 20 See e.g. ANN. CODE OF ARK. § 5-27-303 (2011). 21 See e.g. MD. CRIM. LAW CODE ANN. § 11-207 (2011). 22 See e.g. COLO. REV. STAT. 18-6-403 (2011). 14

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4 be sent instantaneously, states would benefit from a methodological examination of the inconsistencies within statutes and cases that ultimately develops a better way of protecting children. Background The federal statute regarding Sexual Exploitation and Other Abuse of Children criminalizes the distribution, receipt, and/or possession of “visual depiction involv[ing] the use of a minor engaging in sexually explicit conduct.”23 In order to meet this assumption, “the trier

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of fact is not required to determine that the material appeals to the prurient interest of an average person, need not conclude that sexual conduct is portrayed in an offensive manner, and does not have to consider that particular material as a whole. All that is required is that the material

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contain a "lewd" or "lascivious" exhibition of a child's genitals, and that the defendant has actual

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or constructive knowledge of the subject matter of the allegedly obscene material.”24 Courts determine what constitutes obscenity by using what is commonly referred to as

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the Miller Test. The Miller test derives from Miller v. California, where in the U.S. Supreme Court ruled that to deem material obscene, the court must examine: “(a) whether “the average

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person, applying contemporary community standards” would find that the work, taken as a

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whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”25 In the summary of the case, “literary, artistic, political, or scientific” are referred to as “social” value.26

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Id. Barbara J. Van Arsdale, Lewdness, Indecency, and Obscenity, 50 AM. JUR. 2d Lewdness, Indecency, and Obscenity § 28. 25 Miller v. California, 413 U.S. 15; § 930.1 (1973). 26 Id. 24

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5 Legal and Social Implications of Sexting Existing communication and legal research on juvenile sexting is divided into four main areas of concern: whether juvenile sexting qualifies as child pornography,27 suggestions for using other existing laws in juvenile sexting cases,28 suggestions for new laws to cover juvenile sexting,29 and some discussion on sexting as a reinvention of old photo sharing practices.30 Seemingly absent from the literature are the technological implications of how mobile phones and other devices work, particularly with respect to the receiver of the image.

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Juvenile sexting as child pornography entered the legal sphere in Pa. in 2008 with Miller v. Skumanick.31 Several photographs of female students had surfaced, some of which showed the underage girls in towels or bras. District Attorney of Wyoming County, George Skumanick Jr.

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“told 20 students between the ages of 11 and 17 that to avoid prosecution they could enter a

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diversionary program consisting of voluntary classes and up to six months of voluntary probation under a consent decree” in order to avoid federal child pornography charges.32 However, this

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program also contained several portions, which the court found to violate First Amendment and Fourteenth Amendment protections on three counts.33

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Because this complaint was filed as “a temporary restraining order enjoining the district

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attorney and his office from initiating criminal charges,” the court never ruled on whether the two cell phone photographs of girls wearing sports bras or only a towel constituted child 27

See e.g. Clay Calvert, Sex, cell phones, privacy, and the First Amendment: When children become child pornographers and the Lolita effect undermines the law. 18 COMM. LAW CONSPECTUS 1, 1-65 (2009). 28 See e.g. Robert D. Richards & Clay Calvert, When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case. 32 HASTINGS COMM. & ENT. L.J. 1, 1-39 (2009). 29 See e.g. Don Corbett, Let’s Talk About Sext: The Challenge of Finding the Right Legal Response to the Teenage Practice of “Sexting”. 13(6) JOURNAL OF INTERNET LAW 3, 3-8 (2009). 30 See e.g. Richard Chalfen, ‘It’s Only a Picture’: Sexting, ‘Smutty’ Snapshots and Felony Charges, 24 VISUAL STUDIES, 258-268 (2009). 31 James J. Carty, Is the Teen Next Door a Child Pornographer? Parenting, Prosecuting, and Technology Clash Over’Sexting’ in Miller v. Skumanik, 42(1) UNIV. OF TOLDEO LAW REV. 193-225 (2010). 32 Id. at 203. 33 Id.at 204.

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6 pornography.34 However, the court does state that the, “plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts,” while acknowledging that the burden of proof in such a case would be on the Commonwealth.35 Hence, while this ruling is not binding, it suggests that the Commonwealth of Pennsylvania would likely rule that images of teenage girls in sports bras or towels in which their genitals are covered are not child pornography under 18 P.S. § 6312, the statute under which child pornography claims fall. However, this unpublished ruling does not set

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any precedent on whether juvenile sexting can even be brought as a child pornography case.36 With no binding precedent, states have tried several juvenile texting cases as instances of child pornography under their state statutes.37 While in many areas of the law, courts and

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lawmakers draw distinctions between adults and juveniles as perpetrators of crimes, in some

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states, child pornography laws make no distinction.38 Virginia and Florida have the most indiscriminate approach to child pornography laws and their application to juvenile sexting.39 In

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the case of Virginia, “by defining child pornography as something committed by "a person"— rather than a person over the age of eighteen—prosecutors can easily charge a juvenile under this

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statute for sending a sexually explicit picture.”40 This approach is further evidenced by one state

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attorney’s remark that juvenile sexting cases “might squeeze into the literal definition of child

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Id. at 208. Miller v. Skumanick, 605 F. Supp. at 645. 36 Carty at 213. 37 Calvert. 38 Joanna L. Barry, The Child as Victim and Perpetrator: Laws Punishing Juvenile ‘Sexting’, 13 VANDERBILT JOURNAL OF ENT. & TECH. LAW. 129-153 (2010). 39 Id. 40 Id. at 135. 35

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7 pornography.”41 The Virginia law is written in a way of absolute prohibition, considering a naked picture of a child as child pornography regardless of any extraneous circumstances.42 Joanna Barry, Notes Editor for JETLaw, reviewed several cases in both Virginia and Florida, two of the most indiscriminate states with regard to using child pornography laws in juvenile sexting cases and concluded “state child pornography laws written in overly broad language allows prosecutors to file charges against minors who engage in sexting. Furthermore, the state of Florida has, in fact, applied such statutes to punish juveniles. Leveraging child

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pornography statutes in this way ignores the prolific use of technology by teenagers, and leads to an undesirable outcome.”43

Fla.’s recognition that juvenile sexting and child pornography are not necessarily the

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same thing is slower coming. In an interview, Lawrence Walters, a Winter Park, Fla. attorney

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who represented Philip Alpert, the aforementioned 18-year old boy who was required to register as a sex offender after forwarding nude photographs of his 16-year old girlfriend to her e-mail

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contacts addressed this disconnect. Walters said, “child pornography laws were designed to address and punish a very different behavior than kids sending racy photos of themselves to each

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other. Child pornography laws are very strict, very draconian, and the punishments are some of

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the most severe known in the law outside of crimes like murder. They were designed to address pedophilic behavior, usually by older men forcing toddlers or pre-teens to engage in sex acts on camera. That's the typical child pornography case.”44 Among the states taking action to differentiate between juvenile sexting and child pornography is Vermont. According to Stephanie Forbes, a 2009 graduate of William and Mary 41

Id. at 134-135 (quoting an undisclosed Att’y. Gen.). Id. 43 Id. at 136-137. 44 Robert D. Richards and Clay Calvert, When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case, 32 HASTINGS COMM. & ENT. L.J. 1-39 (2009). 42

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8 Law School, who highlights where sexting falls into existing laws, Vermont has taken the lead by decriminalizing sexting.45 Under the new law, sexting would be taken care of as a delinquency case in family court, rather than as a criminal case.46 The Vermont law allows prosecutors to pursue lesser charges if deemed appropriate.47 New Jersey, Pennsylvania, and Ohio are also following suit with similar laws distinguishing juvenile sexting from child pornography.48 More recently, prosecutors have a new option for dealing with cases of sexting in New York. 49 The new law would allow teens

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accused of sexting to take an eight-hour education course on the dangers of sexting to have the charges against them dropped.50 In reaction to this new program, Amy Adler, a professor at New York University’s Law School told Newsday, “child pornography law was designed to protect

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children from predators, not to protect them from themselves.”51 While there are restrictions on

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who can use this program to circumvent criminal charges, many are praising the program as a way to address the new phenomenon of sexting.52

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In recent cases of juvenile sexting as child pornography such as Miller v. Skumanick, the girls who created the questionable material were considered to be at fault.53 Other cases

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involving couples have resulted in charges for both parties, and sometimes the disseminator is

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the one charged.54 Elizabeth Ryan, a recent graduate of the University of Iowa College of Law, identified four different roles in regards to sexting: “(1) the subject of the photo, (2) “the person

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See Vt. Stat. Ann tit. 13, § 2802b (2010). Stephanie Forbes, Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases, 52 WILLIAM AND MARY LAW REVIEW, 1717-1746 (2011). 47 Barry supra. at 140. 48 Forbes supra. at 1724. 49 Ted Phillips, Teens charged with sexting have new option, NEWSDAY, (Sept. 27, 2011). 50 Id. 51 Id. 52 Id. 53 Miller v. Skumanick, 605 F. Supp. 54 Barry. 46

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9 who took the photo,” (3) “the distributor(s) of the photo,” and (4) “the recipient(s) of the photo.””55 She further explains, “in some cases, one actor may assume more than one role, while in other situations multiple actors may assume a single role.” 56 Sexting also takes two different forms. “Primary sexting” occurs where the subject of the photo is the distributor of the photo. “Secondary sexting” occurs where the distributor of the photo receives the photo from the subject or another distributor and then distributes the photo to one or more additional recipient(s).”57

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Given such a context, where so often the subject is the distributor, Ryan (2010) argues that juvenile sexting cases are outside the legislative intent of child pornography statutes, explaining that “this legislative intent does not logically translate to sexting where minors who

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appear in sexting images were, “at least at one point,” willing subjects of the sexting image.

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Although a minor may later regret posing for a sexting image, especially if he or she faces the unintended psychological and reputational consequences of primary or secondary sexting, his or

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her experience is drastically different from victims of traditional child pornography.”58 When examining juvenile sexting as child pornography, intent has a strong importance.

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While traditional child pornography often involves abuse of children, “the victims in teen sexting

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cases are generally willing participants in the initial creation and transmission of the messaging.”59 Rather than litigation, where there is often no meaningful remedy, states could allocate resources toward prevention programs.60 Several non-profit organizations already have

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Elizabeth M. Ryan, Sexting: How the State Can Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended Consequences for Minors and Young Adults, 96 IOWA LAW REV., 357-383 (2010). 56 Id. at 361. 57 Id. at 361. 58 Id. at 371. 59 Krupa Shah, Sexting: Risky or [F]risky? An Examination of the Current and Future Legal Treatment of Sexting in the United States, 2 FAULKNER LAW REV., 193-216 (2010). 60 Ryan.

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10 campaigns to discourage sexting.61 States could either fund expansion of such campaigns or create their own. While sexting is often treated as a new phenomenon, scholars argue that it is an extension of previous issues in society that has become more prevalent and easily observable given current technology.62 Mobile images are the newest way of sharing suggestive images. For as long as technology has existed, teens have exchanged photographs. These may have been class pictures, snapshots from parties, or posed suggestive photographs. The advent of the Polaroid camera

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allowed teens to become more daring with their photographs, as a developer was no longer needed. Mobile technology has expanded this trend, requiring no physical picture to be traded, but rather distributed digitally.63

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Almost entirely missing from the literature is a discussion of juvenile sexting as a sort of

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push media. Push media is described in advertising literature as unsolicited advertising text messages and e-mails, however given the classification of those involved in sexting, an

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uninterested receiver could be prosecuted in most states for child pornography.64 Chalfen makes the assertion that “we need to distinguish people who actually take the pictures (sexters) from

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those who subsequently receive pictures (sextees).”65 The sextee can then be evaluated on a

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continuum, with some sextees not desiring the pictures at all becoming “victims,” some sextees wanting the pictures, and finally some sextees who coerce the sexter.

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Richard Chalfen, ‘It’s Only a Picture’: Sexting, ‘Smutty’ Snapshots and Felony Charges, 24 VISUAL STUDIES, 258-268 (2009). 62 Chalfen at 260. 63 Don Corbett, Let’s Talk about Sext: The Challenge of Finding the Right Legal Response to the Teenage Practice of ‘Sexting,’ 13 JOURNAL OF INTERNET LAW, 3-8 (2009). 64 Ryan. 65 Chalfen at 261.

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11 Juvenile sexting regulations are slowly changing in some states.66 However, not all states are moving away from child pornography charges for juvenile sexting. Given that many statutes are overly broad67 and that technology has changed how we deal with teens and their photo exchanging rituals68, this paper examines the following: Research Question 1 deals with the content of images. Due to an injunction, the court in Miller v. Skumanick69 never ruled on whether or not the images or the conduct could be considered obscene as per child pornography statutes.

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RQ1: What types of conduct involving mobile phones have courts found to be a “visual depiction involv[ing] the use of a minor engaging in sexually explicit conduct”70 under child pornography statutes in the past?

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Research Question 2 deals with the concurrent role of minors as not only the subject of

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images, but also in their role as producer and/or distributor of images. RQ2: Using the subject as distributor model, when considering sexted images as child

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pornography, are the First Amendment rights of minors to expression violated? Research Question 3 deals with the receivers of sexted images and their legal rights.

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RQ3: Under the framework of push technologies, are sextees treated differently in relation to how they obtained images from the sexter than sexters?

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Methods To examine RQ1, a Lexis Nexis Academic search was conducted using the string (child pornography) AND w/20 (cell phone) OR (sexting) OR (sext) within U.S. state and federal 66

See e.g. Forbes; Phillips. Barry supra. at 136. 68 Chalfen. 69 Miller v. Mitchell, 598 F.3d 139; U.S. App. (2010). (Miller was substituted for Skumanick in his official capacity as District Attorney of Wyoming County, Pennsylvania). 70 18 USCS § 2252. 67

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12 courts. Combing these terms yielded 46 results71. Cases were then read to determine whether they involved child pornography charges in which the material was obtained through a cell phone. Three cases involved a person soliciting images from a minor through a mobile device or e-mail.72 Four cases involved a person using a mobile device to take obscene photographs of minors.73 One case, as previously talked about was the Miller v. Mitchell case involving teenage girls sharing photos with their peers.74 The remainder of cases involved the procurement of child pornography through other means and storing it on a mobile device.

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To examine RQ2 and RQ3, a Lexis Nexis Academic search was conducted using the term “sexting” within U.S. state and federal courts. This term yielded 21 results, of which the Miller case appeared three times, reducing the overall sample to 19 cases.75 Cases were then assessed

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for whether they involved a minor child as the producer or willing participant in production of

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the images. Three cases included a juvenile producer.76 Two cases deal with whether the minors in question were coerced.77 One case looks at the difference between teen child pornography and

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pre-pubescent child pornography.78 The cases were then closely read for information pertaining to the relationship of the minor producer to the recipient, the context under which the images

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were sent, and how each party was judged.

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LexisNexis Academic. Commonwealth v. Hall, 80 Mass. App. Ct. 317; 952 N.E.2d 951 (2011); State v. Wills, 2010 Tenn. Crim. App. (2011); United States v. Beckett, 544 F. Supp. 2d 1346; U.S. Dist. (2008). 73 State v. Wills, 2010 Tenn. Crim. App. (2011); United States v. Stringer, 2011 U.S. Dist. (2011); United States v. Blauvelt, 638 F.3d 281; (2011); United States v. Kent, 531 F.3d 642; 2008 U.S. App. (2011). 74 Miller v. Mitchell, 598 F.3d 139; U.S. App. (2010). 75 Original injunction, as well as appeal for this case showed up in search results. Only the final appeal was used. 76 Miller v. Mitchell, 598 F.3d 139; U.S. App. (2010); United States v. Broxmeyer, 616 F.3d 120; U.S. App. (2011); United States v. Mauldin, decided Sept. 2011, unpublished. 77 Clark v. Roccanova et al., 772 F. Supp. 2d 844; U.S. Dist. (2011); State v. Wilson, W. Va. (2011). 78 United States v. Campbell, 738 F. Supp. 2d 960, U.S. Dist. (2010). 72

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13 Mobile Content Transmission and Child Pornography Overwhelmingly, most of mobile child pornography cases involved storage of child pornography obtained through other means such as P2P networks and electronic mail that was then stored on a cell phone.79 These cases are however outside the scope of this study, as a mobile device was not necessarily used to create visual representations. The Internet and mobile phones have changed the way we look at what a “visual reproduction” may be and how image permanence impacts possession. Images contained on

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mobile phones are considered visual reproductions. Further, as digital images are easily erasable, cell phone images are not required even to still exist in order for a person to be charged with possession of child pornography.80

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The Massachusetts Child Pornography statute reads such that child pornography may be

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possessed in the forms of “a negative, slide, book, magazine, film, videotape, photograph or other similar visual reproduction, or depiction by computer.”81 In 2011, Kenneth Hall who had

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given a cell phone to an 11-year old girl, “Mary,” and asked her to take pictures of her “butt and private” stood accused of child pornography among other counts of sexual abuse of a minor

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child.82 Hall argued that the statute did not cover cell phone images, “because the statute… does

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not specifically prohibit images taken on a cellular telephone (cell phone) camera and that the evidence was insufficient to prove that he actually possessed the images.”83 In this matter, the court relied on a prior state Supreme Court ruling in Perry v. Commonwealth indicating that “the phrase "visual material,” as defined… [would] include ““any . . . photograph” . . . without

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See e.g. C.R. v. United States U.S. Dist. LEXIS (2011), unpublished.; Logan v. Sycamore Comm. School Board of Educ. 780 F. Supp. 2d 594 U.S. Dist. (2011). 80 Commonwealth v. Hall, 80 Mass. App. Ct. 317; 952 N.E.2d 951 (2011). 81 ALM GL ch. 272, § 29C (2011). 82 Commonwealth v. Hall, 80 Mass. App. Ct. 317; 952 N.E.2d 951 (2011). 83 Id.

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14 limitation.” 84 Further, “it matters not that the scene is captured in bytes rather than on conventional film.”85 Hall also contended that he did not possess such images, as they were not stored on his cell phone. Records from Mary’s cell phone transmissions to Hall, an account in Hall’s wife’s name, showed some photographs of the girl partially clothed. While the court acknowledged that there was no way of definitively proving that Hall opened the messages, a reasonable jury would conclude that he at one time possessed child pornography.86

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Producing Child Pornography with a Mobile Phone Of the sample, four cases involved using a mobile phone to create child pornography.87 In three of these cases, the issue of law in question is the method by which police obtained the

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cell phones and found the images.88 One case involved a child pornographer being “caught in the act” at a tanning salon.89

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Videos of the adult cell phone owner engaging in sexual activity with a minor are clearly

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child pornography. In these cases, the courts first rule if how police found the images was within the scope of the Fourth Amendment.90 When ruling on privacy issues related to cell phone

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searches, courts have typically held in two very different fashions.91 These considerations, as cited in United States v. Stringer are as follows:

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84

438 Mass. 282; 780 N.E.2d 53; 2002 Mass. LEXIS 877 as cited in Commonwealth v. Hall, 80 Mass. App. Ct. 317; 952 N.E.2d 951; 2011 Mass. App. LEXIS 1152. 85 Id. 86 Commonwealth v. Hall, 80 Mass. App. Ct. 317; 952 N.E.2d 951 (2011). 87 State v. Wills, 2010 Tenn. Crim. App. (2011); United States v. Stringer, 2011 U.S. Dist. LEXIS 97195; United States v. Blauvelt, 638 F.3d 281; 2011 U.S. App. LEXIS 4593; United States v. Kent, 531 F.3d 642; 2008 U.S. App. LEXIS 14275. 88 United States v. Stringer, 2011 U.S. Dist. LEXIS 97195; United States v. Blauvelt, 638 F.3d 281; 2011 U.S. App. LEXIS 4593; United States v. Kent, 531 F.3d 642; 2008 U.S. App. LEXIS 14275. 89 State v. Wills, 2010 Tenn. Crim. App. (2011). 90 See United States v. Stringer, 2011 U.S. Dist. LEXIS 97195; United States v. Blauvelt, 638 F.3d 281; 2011 U.S. App. LEXIS 4593; United States v. Kent, 531 F.3d 642; 2008 U.S. App. LEXIS 14275. 91 In all of the cases included in this analysis, the courts viewed the cell phones as containers for search purposes.

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15 Some courts confronting the issue have permitted warrantless cell phone searches by analogizing cell phones to a "container," similar to a wallet or a purse. United States v. Dennis, 2007 U.S. Dist. LEXIS 83892, 2007 WL 3400500, at *7-*8 (E.D.Ky. Nov. 13, 2007) (information retrieved from cell phone no different than any other evidence seized incident to arrest). At the same time, other courts have been unwilling to extend the automobile exception to sanction the warrantless search of cell phones and their contents, given the vast amounts of data that some cell phones contain or may store, making them more analogous to computers than traditional telephones, pagers, or closed containers. United States v. Park, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *8-*9 (N.D.Cal. May 23, 2007) (cell phones carry heightened expectation of privacy due to immense amounts of private, personal [*27] information capable of being stored thereon). In United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999), the Tenth Circuit Court of Appeals opined that "[r]elying on analogies to closed containers ... may lead courts to oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.") The Court must conclude, however, that the majority position appears to favor a holding that cell phones and cameras should be viewed as containers for purposes of Fourth Amendment law.92

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Three cases involved adults soliciting pornographic images from children. As previously

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discussed, Kenneth Hall bought an 11-year old girl, “Mary” several cell phones and other gifts, including access to a puppy of Hall’s that her mother would not let her take.93 In exchange, Hall

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asked Mary for pictures of her privates and “butt.”94 A key finding in United States v. Hall is that Hall did not necessarily “entice” Mary to take these pictures. The Appeals Court of

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Massachusetts acknowledges “the defendant need not physically meet the victim at the same

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place to which he entices the victim to go,” and that by using the promise of gifts, Hall was able to lure Mary into a virtual space. However, they held that without a physical presence of the perpetrator, the harm defined by the enticement statute could not occur.95 Enticement is not the only threat of harm that can be used when securing pornographic images of children. Timothy Wayne Beckett, a Florida man posed as a 17-year old girl online in

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United States v. Stringer, 2011 U.S. Dist. LEXIS 97195 Commonwealth v. Hall, 80 Mass. App. Ct. 317; 952 N.E.2d 951 (2011). 94 Id. 95 Id. 93

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16 order to solicit nude pictures from underage males.96 After securing the images, Beckett revealed his true identity and indicated to his victims, J.H. and C.L. respectively that he would like to engage in oral sex with them. He threatened to expose their nude pictures if they did not comply.97 This case provides an interesting transition into cases of minors willingly sending nude or semi-nude photographs to other minors. In this case, when both J.H. and C.L. sent the pictures, they believed they were sending them to another minor of the opposite sex.98 There is no

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evidence that Beckett tried to force them in any way. Additionally, there is no legislative history linking J.H. and C.L. to the production of child pornography as minor producers. The Subject as the Distributor

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The previous cases examined child pornography obtained by adults. In some cases, the

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minors in question actually produced material, but in all cases, for an adult. When the adult is the viewer of child pornography, it is easy for courts to assume that the adult had some ability to

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pressure the child in some way, but issues may arise when a minor creates potentially pornographic content by his/her own free will or for the consumption of other minor(s).

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Three cases in this analysis touched on the issue of the subject as the distributor of

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obscene material. The Miller case, as previously mentioned involved teenage girls in their bras taking photographs.

Todd Broxmeyer, a 37-year old hockey coach, was found guilty of production of child pornography at the New York trial level. The photographs in question were of a 17-year old hockey player that he coached with whom he had been having a sexual relationship. In New York State, 17 is old enough to consent to sex. “The photographs at issue were taken by the 96

United States v. Beckett, 544 F. Supp. 2d 1346; 2008 U.S. Dist. LEXIS (2008). Id. 98 Id. 97

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17 minor, not defendant, and there was no evidence he induced her to take them.”99 Because Broxmeyer did not take the pictures, he could not be guilty of production.100 Private First Class Brandon L. Mauldin was initially convicted in a military court of possessing child pornography on his cell phone. 101 The images were from a girl, G.P., whom he had been dating. Originally, Mauldin believed the girl to be 18, later finding out that she was only 15. They continued to talk and G.P. sent Mauldin four images. Two of these were of her upper torso, and two were of her lower body and vagina. Mauldin saved these photos in a folder

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called “my wife” on his cell phone. He also, “stated that he did not ask G.P. to send the pictures but, because of his feelings for her, he planned on keeping them.”102 The court found that this description is not enough to determine whether an image is

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child pornography. A photograph of the genital region is not necessarily always child

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pornography, or “not every exposure of genitals or pubic area constitutes a lascivious exhibition that would convert the images into depictions of sexually explicit conduct.”103 Coercion of Minors

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Two cases look at how others have coerced, if not legally, functionally minors to

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participate in the creation of child pornography. One case examined how minors coerced

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another minor. 104 The other focused on how an adult coerced two minors.105 Clark was a civil matter, in which Roccanova, Rudy, and Lynch “coerced, enticed and persuaded Clark to produce a sexually explicit video, in violation of 18 U.S.C. § 2251. That same year, all three defendants transmitted the video in interstate commerce on the internet, in 99

United States v. Broxmeyer, 616 F.3d 120; U.S. App. (2011). Id. 101 United States v. Mauldin, decided Sept. 2011, unpublished. 102 Id. 103 Roderick cited in United States v. Mauldin 104 Clark v. Roccanova et al., 772 F. Supp. 2d 844; U.S. Dist. (2011). 105 State v. Wilson, W. Va. (2011). 100

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18 violation of 18 U.S.C. § 2252. All parties were 14 years old at the time of these actions.”106 The court held that although the defendants were minors, they should still each be viewed as a “person” through the legal language of the statute.107 This case set a precedent in being able to charge minors under the Federal child pornography statute.108 In State v. Wilson, James H. Wilson was given a memorandum decision on appeal.109 The original case originated in 2009 when Wilson “invited two minor females, D.D. and S.S., ages 16 and 17, respectively, to his house to spend the evening with him and his brother. The

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girls later reported that while at petitioner's home, and under a threat of "no ride home" to D.D.'s house where S.S. was spending the night, petitioner made the girls remove their clothing and kiss one another. Petitioner took a photograph of the nude girls with his cellular telephone. He then

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drove them to D.D.'s house.”110 After Wilson took the girls home:

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Later that same evening, petitioner and D.D. began text messaging one another on their cellular telephones. These communications escalated into a heated exchange with petitioner threatening to disseminate the nude photograph of the girls over the Internet if D.D. did not sneak S.S. back out of the house. The next morning, petitioner sent the nude photograph of the girls to D.D., as well as to a male high school classmate of the girls, via a cellular text message.111

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Wilson also claims he had a previous “on/off” consensual sexual relationship with D.D.112

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In his appeal, Wilson also “asserts that he is not a "sex offender" in the traditional sense of the word and that state legislatures are scrambling to deal with the recent phenomena of

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Clark v. Roccanova et al., 772 F. Supp. 2d 844; U.S. Dist. (2011). Id. 108 The trial court in Clark v. Roccanova et al., 772 F. Supp. 2d 844; U.S. Dist. (2011) ruled that the language of the statute referring to a “person” as a creator of child pornography did not solely apply to adult child pornographers. Minors can be tried and sentenced as adults for producing child pornography. 109 State v. Wilson, Wva. Sup. Ct. of App. No. 11-0119 (2011). 110 Id. 111 Id. 112 Id. 107

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19 “sexting.””113 The court found this claim irrelevant to his appeal because it was not brought up at trial and directly contradicted his guilty plea.114 While the final case in this analysis is not a direct case of sexting, it does take into consideration both the content of the material as well as the age of those being exposed. In 2008, an FBI agent and a Nebraska Highway Patrol investigator went to the home of Matthew Campbell to investigate a recent Europol report concerning pornography made of underage girls in Eastern Europe.115 “Campbell let them in and allowed them to search his computer and

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related devices. When the agents were at the home, Campbell also admitted to possessing child pornography. Among other things, he advised that the videos contained “girls (13-16 years old) who were partially clothed in a T-shirt and bikini bottoms. Some of the videos were of only one

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girl, while others contained two young girls dancing around together to “bad music.””116

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In this case, the images are not of pre-pubescent girls like the majority of child pornography cases.117 Further, there are no sex acts taking place. While District Judge, Richard

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G. Kopf, in his opinion acknowledges that these images are within the scope of child pornography, he also acknowledges that they’re not as bad as they could be; there are no images

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of small children being forced into intercourse.118 Combining these aspects with Campbell’s

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otherwise flawless record, Kopf argued that Campbell should be subjected only to a probationary sentence.119

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Id. Id. 115 United States v. Campbell, 738 F. Supp. 2d 960, U.S. Dist. (2010). 116 Id. 117 Id. at [*962-963]. 118 Id. 119 Id. 114

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20 But (S)he Sexted Me… Of the three cases that involve a minor willfully sexting images, Miller, Broxmeyer, and Mauldin, the only case in which the minors who sexted the image potentially faced any legal recourse was the Miller case.120 In both Broxmeyer and Mauldin, the recipients were adults, leading courts to presume they had more influence in the situation.121 Because of the injunction filed in Miller, the case leaves more questions than it answers.122 In Broxmeyer, the government needed to prove temporal sequence, in that Broxmeyer

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persuaded A.W. to take the pictures, not just that he praised her for them later.123 There was no evidence linking the photographs in question to a persuasion attempt. Therefore, Broxmeyer was found not guilty of the child pornography charges because did not coerce A.W. and she was

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above the legal age of consent in New York.

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Further, in Mauldin, the defendant stated that he did not request nude pictures from G.P. He kept them on his phone once he received them, but according to the evidence, he never

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requested that she send him such images.124 In this case, the minor was 15, under the age of consent in Georgia where the incident took place. However, the appeals court overturned the

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guilty verdict in that they could not determine that the photographs were lewd or lascivious from the descriptions provided.125

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120

Miller v. Mitchell, 598 F.3d 139; U.S. App. (2010). United States v. Broxmeyer, 616 F.3d 120; U.S. App. (2011); United States v. Mauldin, decided Sept. 2011, unpublished. 122 Miller v. Mitchell, 598 F.3d 139; U.S. App. (2010). 123 United States v. Broxmeyer, 616 F.3d 120; U.S. App. (2011) 124 United States v. Mauldin, decided Sept. 2011, unpublished. 125 Id. 121

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21 Recommendations In deciding whether or not sexting cases fall within the scope of existing child pornography statutes, there are several factors that courts must consider. First, is the material in question actually obscene? While the court never ruled on the actual images in question in the Miller case, it would have been unreasonable for any court to find images of teenage girls in opaque bras to be particularly lewd.126 Further, the Maulin case as it currently stands, provides no sufficient answer as to which vaginal images are obscene and which are not.127

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Next, courts ought to consider the relationship between the sextee and sexter. Age differences should play a role in this analysis. When the “minor” for purposes of Federal or State child pornography statutes is an “adult” as per statutory rape laws, seeking a child

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pornography prosecution may not be the best allocation of resources in fighting exploitation of

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children.128 The analysis in Campbell, takes this one step further, arguing that resources are best used to find these “monsters” who perpetrate violent sexual acts against small children, rather

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than those who are potentially causing harm to teens.129

As previously stated, material is considered obscene and outside the scope of First

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Amendment protection when “taken as a whole, appeals to the prurient interest, is patently

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offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value.”130 These considerations can be lumped together as social value.131 When done in good faith, is there not a social value of expressing love and attraction? Chalfen argues that 126

Miller v. California, 413 U.S. 15; § 930.1 (1973). United States v. Mauldin, decided Sept. 2011, unpublished. 128 In the opinion, written by Judge Richard G. Kopf for United States v. Campbell, 738 F. Supp. 2d 960, U.S. Dist. (2010), Kopf describes very vivid and disturbing images that he has seen in child pornography cases and compares them to the material in the Campbell case, essentially arguing that this is benign compared to what they’re really out to prosecute and prevent. 129 United States v. Campbell, 738 F. Supp. 2d 960, U.S. Dist. (2010). 130 Miller v. California in David Oswell, When Images Matter: Internet Child Pornography, Forms of Observation and an Ethics of the Virtual, 9(2) Information, Communication & Society, 244-265 (2006). 131 CAL PEN CODE § 311 127

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22 this sexting phenomenon may just be an extension of previous teenage photo sharing practices, often prevalent among those for whom they care.132 While every case within the realm of sexting may not fall under this framework, in conjunction with the aforementioned considerations, looking at the intent behind sending the images may prove useful in evaluating the most beneficial response.133 As previously stated, several states have been developing new laws under which to punish juvenile sexters without requiring them to be sex offenders for much of their lives.134

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States however need to be careful. It became clear in Miller that states need to be careful about what content they include in alternative programs. Further, because these new laws do not preclude prosecution under existing statutes, district attorneys and courts need to be careful to

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implement their statutory tools consistently. Limitations

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This paper is a qualitative analysis of several cases. Qualitative analysis is inherently

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subject to subjectivity.135 It is completely possible that another researcher may reach very different conclusions from these cases.136

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Also, as sexting, defined in 2009,137 is a relatively new legal concern, there are not many

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cases easily definable as such. On the other side, there are too many child pornography cases to assess them all within a limited time period– therefore, this study was limited primarily to the scope of mobile devices, with Internet transmission when relevant.

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Chalfen at 259. Diefenbach. 134 Jacim. 135 Textual analysis is not an exact method. 136 Depending on what facts they read the cases for. 137 Miller v. Skumanick, 605 F. Supp. 2d 634, 637-39 (M.D. Pa. 2009) 133

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23 Future Research Future research should look at the sociological, psychological, and physical impacts of being found guilty of a sexual crime against children. While legal research often focuses on the harm done to children in the production of child pornography, researchers should also examine both quantitative and qualitative differences between defendants like Campbell, who downloaded videos of teenage girls dancing suggestively and Hall who used gifts to entice an 11-year old girl from a broken home to take obscene photographs of herself.138 While these are

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cases of child pornography,139 these cases illustrate that not all child pornography is created equally.

Conclusions

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Juvenile sexting is rampant.140 Teens often do not realize that the pictures they take

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today could ruin their lives tomorrow.141 While something should be done to curb this problem, the legal system should not be the primary system through which that happens.142 Lumping

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juvenile sexting in with child pornography statutes can validated by an overwhelming argument that children must be protected from harm. Charging a child as a sex offender may actually

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cause more harm than the picture.143

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Further, if we view sexting as an extension of the picture exchange rituals in which teens have participated for decades, it may have social value. Future research should focus on the

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United States v. Campbell, 738 F. Supp. 2d 960, U.S. Dist. (2010); Commonwealth v. Hall, 80 Mass. App. Ct. 317; 952 N.E.2d 951 (2011). 139 Id. 140 Wendy Koch, Teens caught 'sexting' face porn charges, USA TODAY, (11 Mar. 2009). 141 Id. 142 Having a criminal record and being forced to register as a sex offender are not the best practices for protecting children from harm. 143 On a show I saw on MTV about Phillip Alpert, he talks about how weird he feels when people come to his house to ask why he is on the sex offender registry and should they look out for their children. Alpert’s lawyer worries that over time, Alpert who was born in 1989, will begin to think he is like true pedophiles.

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24 motivations and gratifications of sexting in order to fully understand the cognitive process through which one goes in deciding to send a sexually explicit image to another person. Alternative laws, social education programs, and parental involvement are all part of the equation. Regardless of whether anyone thinks that sexting has social value, the reality is that it may potentially have social (and economic) consequences of which teens need to fully comprehend before they push send.

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