Intent makes bad law in general. It would be hard to prosecute, and therefore less likely the law would spend money persuing, a crime where they had to prove such a vague notion of intent.
It’s pretty easy to show that there is a picture of an underage person on a cell phone. It is much harder to determine whether that person decided on their own to take the picture and send it to some teacher without that teacher’s knowledge, or whether the teacher mentioned verbally that they would like such a picture, and then the child sent the picture.
And would the child be punished if we found an adult told them to do it, but not if an adult didn’t tell them to do it?
If not, then you set up a case where a child could take a picture, send it to an adult, and then claim that the adult asked for it — how would the adult prove otherwise, there would be no way forensically to show what came first if the child alleges a verbal command.
It would simply be too hard to ever prosecute a law that tried to make such a distinction. Anyway, if the crime is having a picture of a minor, then a minor taking a picture of themselves should be subject to the same law as an adult (not the same punishment, because we’ve always found a way to punish minors differently since they aren’t as “culpable”).
Of course, if we start talking punishment, I think most of our “sex offender” laws are absurd — and this from a person who wishes we could do a lot more to ban and restrict pornography.
A law that made some good sense, labelling the perverse subset of the population who really are sick and can’t be trusted around children, became a broad brush labelling a lot of people who just make simple mistakes as “sex offenders”, a punishment far outweighing their crime.
It is absurd that a high-school boy can get labelled a sex offender because he goes to a party where people are drinking and some drunk girl ends up sleeping with him but it turns out she was a freshman in high school, and therefore underage. I don’t mind that it is a crime, but it’s not a “sex offender” crime, and they shouldn’t be labeled as such.
So in summary, I think that if we are going to ban pictures of underage naked kids, kids should not be allowed to take those pictures and mail them.
I think the law should allow ANY person to take any pictures of themselves they want, and keep them private.
I think that, in places where public nudity is allowed, parents should be allowed to take pictures of their family, even if the family is naked. If we don’t like that, we should ban places of public nudity.
Maybe if we make young girls aware that taking naked pictures of themselves and sending those pictures to their boyfriends will get THEM in trouble, it will help everybody do what is right. And in fact, girls who send naked pictures of themselves to guys ARE hurting the guys, as well as themselves, so I don’t really object to the idea that they should be punished for it.
It does seems strange though that we can punish them for sending naked pictures, but modern “tolerance” says that if they have sex we should expect it and can’t stop it.
Ultimately we have an undesireable action.
We can do something to discourage such activity from minors (and leave adults to their own devices, literally).
The technology exists (even if the kids don’t have a cellphone with a camera, there are digital cameras and even hidden cameras used by fellow classmates). The genie is out of the bottle (the technology cannot be eliminated).
So something can be done to violators or the whole mess can be decriminalized (because there are those on this thread making the case that it is a victimless crime) since they argue that it is pointless to prosecute.
What will each course of action do to the number of such images on the internetz? Nothing ever dies in cyberspace. So efforts should be made to limit the number of such images produced.
Also the media culture should do more to discourage such activity. Laura Ingraham calls it the pornification of the culture. Quite a few celebrities private “clips/snaps” have been leaked to the media now. Even Disney actresses “do it”. Ultimately, when such images leak, it is seen as a popularity booster.
We live in the celebrity age. Welcome our new leader, the empty suit.
It used to be that the prosecution would be required to demonstrate criminal intent (mens rea) for almost any felony conviction. I would suggest that having proof of intent as a general requirement is a good thing, and the erosion of that requirement over the last few decades as a bad thing.
There is no practical way that anyone who surfs the web can be certain that there aren't any kiddy porn pictures on his machine, except by disabling all picture downloads. If I wanted to put one on your hard drive, I could create a table with a background image that would be obscured by the table contents; that background image would get loaded into your cache without your even knowing it. Of course, if I did that in a straightforward fashion everyone would get the picture, not just you. But if I could figure out your IP I could rig my web server so that when anyone but you requested a picture it would serve up a nice one, but when you requested the picture it would redirect to a kiddy porn site. If I did it right, it would be almost impossible for you to know it had happened, or to prove afterward where the image came from.
Would you view as a good thing the lack of any requirement that the prosecution show you deliberately obtained the images? Or should the mere existence of such images in your cache be sufficient to brand you a 'sex offender' even though you undertook no deliberate action to receive them?
It’s pretty easy to show that there is a picture of an underage person on a cell phone. It is much harder to determine whether that person decided on their own to take the picture and send it to some teacher without that teacher’s knowledge, or whether the teacher mentioned verbally that they would like such a picture, and then the child sent the picture.
So if someone sends a lewd picture to a cell phone while it's sitting in a drawer, and authorities discover the picture before the owner sees it, the owner of the phone should be prosecuted?
If not, then you set up a case where a child could take a picture, send it to an adult, and then claim that the adult asked for it — how would the adult prove otherwise, there would be no way forensically to show what came first if the child alleges a verbal command.
A jury would judge the credibility of witnesses, evidence of a pattern of behavior, etc. If many people claim to have received unsolicited lewd photos of the student, that would lend credence to the teacher's claim that the photo was unsolicited. If many students have complained about the teacher's efforts to entice them, that would lend credence to the claim that the teacher had solicited the photo.
Maybe if we make young girls aware that taking naked pictures of themselves and sending those pictures to their boyfriends will get THEM in trouble, it will help everybody do what is right.
Is there any reason to believe that an underage person would be more competent to consent to having sex with another person, than to exchanging lewd photos with that person?