Andrea Slane is the Executive Director of the Centre for Innovation Law and Policy (CILP) at the University of Toronto, Faculty of Law and is an IP Osgoode Research Affiliate.
The practice of “sexting” – teens sending sexual, nude or semi-nude photos of themselves through text messaging programs on cell phones – is currently garnering a lot of media attention, especially in the United States. This attention tends to follow two threads. Either the media addresses whether it is appropriate to charge the teens making, sending and/or receiving these messages with child pornography offences, given that at least one study has identified sexting as a wide-spread practice among teens, or the focus is on the hardships suffered by the young people whose images are circulated beyond the originally intended recipient.
The thread focusing on harm to subjects of sexual photos typically arises where a jilted ex-boyfriend more or less widely circulates a consensually taken and sent photo after the relationship goes sour. The harm here lies not only in the circulation of the photo per se, but the ridicule, harassment, and other forms of bullying the subject of the photo is subjected to by her peers – harm that is imminently foreseeable (and often intended) by the ex-boyfriend who got the ball rolling. On the March 6th edition of the Today Show, the tragic story of one such victim, Jesse Logan, is recounted by her grieving mother: after months of taunting and abuse by her peers which was sparked by the widespread circulation of a nude photo by her ex-boyfriend, 18 year old Jesse committed suicide. Jesse’s mother is on the show to inspire two actions: discourage other teens from sending sexual photos in the first place, and encourage schools and police forces to intervene and remedy the situation, before it escalates to the point of hopelessness.
In what appears to be a follow up episode on March 10th, the Today Show aired another segment on the perils of sexting, this time focusing on the consequences for those who make or send the photographs, and asking whether slapping child pornography charges on teens is appropriate. While Jesse Logan’s story is raised again, the lead example is of Florida resident Phillip Alpert, who at age 18 was convicted of transmitting child pornography when he retaliated against his sixteen year old ex-girlfriend by sending her nude photo to over 70 people, including her parents, grandparents and teachers. Given Florida’s draconian sex offender registry system, Alpert is under close supervision and on the sex offender registry. The upshot of the segment is that for one stupid and admittedly mean spirited act, his life has been ruined. Florida “First Amendment and Internet law” attorney Lawrence Walters is the expert on the show, stating that 1) while these acts are wrong, they should not fall under child pornography offences (which he characterizes as being really about adults consuming images of children being sexually abused); and 2) that we are holding teens to a higher standard than adults by punishing activities which adults engage in all the time.
What strikes me about Walters’ reasoning is that it either conflates consensually held photography with non-consensual circulation, or it holds that because we don’t punish adults who engage in the mean spirited non-consensual circulation of sexual photos of their ex-lovers we should not punish adolescents for this behaviour either. The Canadian approach to the harms of child pornography excludes the taking and sharing of sexual photos by minors over the age of consent, as long as such photos are kept privately and for the mutual pleasure of the intimate partners involved in taking the photo (R. v. Sharpe). Thus in Canada, it is only where the photo is circulated outside of the original intimate partnership that the acts of possessing or distributing the photo qualify as child pornography offences. This approach avoids some of the more egregious mismatches highlighted by some U.S. cases, where privately held sexual photos of teens were discovered by teachers or coaches who confiscated cell phones under school cell phone bans, for instance, rather than due to the photos themselves causing disruption in the school.
But Canada and the U.S. share an uncomfortable fit between malicious circulation of once consensual sexual photos among peers and child pornography offences, as well as a lack of accessible remedies for adults who fall victim to similar malicious behaviours. In other words, I would turn Walters’ argument in a different direction, namely that part of the problem of the perceived mismatch of action to punishment among teens is the unavailability of a remedy for this kind of behaviour by adults vis a vis other adults, which is connected to that fact that only child pornography law applies, rather than, say, a criminal variant of invasion of privacy.
There are sound reasons why child pornography offences apply (again, set out in R. v. Sharpe) and why we deem youth under 18 as incapable of consenting to being the subject of sexual photography that is publicly disseminated. But there are also some underdeveloped threads within privacy law regarding the exposure of a person to ridicule via photography which are broached in Aubry v. Editions Vice Versa that could justify an offence of invasion of privacy in cases of malicious publication or circulation of intimate photos – which may be a preferable route over child pornography offences for at least some of the teen-on-teen cases, in that they would not be sexual offences per se and could carry a lesser penalty.
Aubry, being concerned as it is with a civil law breach of the Quebec Charter’s protections of “private life”, struggles with the degree to which the facts in that case lend themselves to a finding that the subject of the photograph (a 17 year old girl sitting outside on the steps of a building) suffered harm as a consequence of the non-consensual taking and publication of the photo at issue. Interestingly enough, the final ruling in favour of the plaintiff depends more on the specificity of a teenager’s social circle than some more universal standard of harm, where it is precisely a “teenager’s sensitivity to teasing by her friends” that is foreseeable by the photographer taking and publishing her picture without her consent. Where the circulation of sexual photographs is concerned, the elevation of the civil standard of foreseeability to the criminal standard of mens rea is not far fetched – particularly where photographs of teens are concerned, and where indeed the point of the circulation of the photograph is clearly to both humiliate (by sending the photographs to parents, grandparents and teachers) and to incite the bullying behaviours of peers. The availability of such an offence might mean that people who circulate sexual images of teens within the subject’s social world would still be more likely to meet the elements of the offence than a person who circulates a photo of an adult, but the offence would not reinforce the somewhat arbitrary disappearance of protection that currently occurs once a young person turns 18.
An additional benefit of such an offence is that it emphasizes the dignity-based privacy values which underlie the harms caused by these actions, and the offence would not be limited to sexual photos but could include other types of compromising photos (washroom photos, for instance). It is certainly important to note that for the most part the victims of these actions are girls or young women, for whom the maintenance of dignity in the realm of sexuality is still, sadly, hard to come by.