In December 2008, the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com published a report summarizing the findings of a survey they had commissioned on adolescents, twenty-somethings, technology and sexuality. Entitled, appropriately enough, “Sex and Tech,” the report and related articles were made available on each organization’s website, along with press releases highlighting some of the statistics that the survey of 1280 subjects had generated. The report was immediately followed by an Associated Press article citing its findings. The story was then picked up by several newspapers, online magazines, cable news programs, each calling particular attention to one statistic: twenty percent of teens overall (i.e., boys and girls) have “sent/posted nude or semi-nude pictures or video of themselves.”[open endnotes in new window]
Judging from the spate of articles that have followed since its publication, the “Sex and Tech” study seems to have lent statistical credence to a practice that legal scholars and some journalists have been addressing for the past few years. Generally referred to as “sexting” or “self-produced child pornography,” this practice involves adolescents taking pictures of themselves naked or barely clothed or engaged in a sexual act and then posting the images online or texting or emailing them to friends. As the label “self-produced child pornography” indicates, the production, distribution and possession of these images is a criminal act if the subject photographed is under eighteen. Minors participating in this seemingly innocuous form of flirtatious or erotic exchange have been formally charged with production and distribution or possession of child pornography.
For example, in a 2004 Florida state case, a sixteen-year-old girl (A.H.) was adjudicated as a delinquent for taking pictures of herself having sex with her seventeen-year-old boyfriend and then emailing them from his computer to hers. And in 2002, in Seattle, Washington, August Anthony Vezzoni, then sixteen years old, was adjudicated as delinquent for showing nude photographs of a former girlfriend to friends at school. Or, to take a more recent example that has received much media attention, three teenage girls in Greensburg, Pennsylvania, were charged in January 2009 with producing and distributing child pornography for taking and then sending nude pictures of their own fourteen and fifteen year old bodies and then texting the images to their friends. Three boys (aged 16 and 17) who received the images were charged with possession of child pornography. In the last six years, similar charges have been brought against minors in Alabama, Connecticut, Denver, Florida, Georgia, New York, New Jersey, Michigan, Pennsylvania, Texas and Wisconsin.
These cases, and the media coverage they receive, all attest to the fact that child pornography has become a crime in which minors are constructed as perpetrators as well as victims. This paradoxical stance towards minors, predicated on a construction of children as innocent and punishment of those who defile that construct, is propped up by complex argumentation on the part of judges and legal scholars as well as some equally convoluted thinking on the part of journalists. Before further engaging with both those forms of discourse and the ways in which they construct children, I would like to address the question of statistical research and the dearth of up to date studies on child pornography within U.S. academia.
The circulation of dubious statistics and conjectures regarding child pornography should be read as an inevitable consequence of the legal penalties for having any encounter with pornographic material featuring subjects who are minors. The very act of approaching persons under eighteen and asking them if they produce, possess, or distribute erotic material featuring themselves (or another minor) constitutes a crime. One’s standing as scholar or researcher makes no difference from a legal perspective. Ask a minor about naked photos and you are soliciting contraband and harassing a child.
While the current legislation against child pornography is certainly a research hurdle, I want to make clear that its consequences extend beyond the fate of the minors who produce it or the scholars who would hope to study them. By criminalizing self-produced child pornography, our government has effectively censored minors’ right to record their sexualities or erotic identities. It is as though the existence of underage sex dealt a bad enough blow to our culture’s construction of childhood; the production of a visual record of such acts has been designated as beyond the pale, a social practice that must be eradicated.
In the past decade, social constructionist scholars such as Steven Angelides and Philip Jenkins have noted the changes that the discourse of child sexuality has undergone, arguing that we are still in the midst of a pendulum swing initiated by the child rights and sexual liberation movements of the 1970s. Making a similar claim about the role of innocence in defining children and childhood, James Kincaid has argued that the child be understood as a cultural construct that is essentially an emptiness, void, or lack, a “species which is free of sexual feeling or response.” According to Kincaid, children’s innocence is one that we (adults) insist upon all too emphatically. Of course, that’s not to say there’s an absence of talk on the subject of children and sex. Covering up what should be a deafening silence is the incessant chatter of adults. Having shushed the kids, we adults gleefully expound on what they must feel: duped, misguided, ultimately regretful of having exposed and/or exploited their bodies. Exploited object? Of course, it’s the part kids were born to play. But the role of subject when it comes to discourses of desire? That remains off limits.
The very terms “self-produced child pornography” and, to a less explicit degree “sexting,” reveal the ideological agenda that they further. In their analyses of the adolescent social practice of producing and sharing eroticized images, media and legal discourses work to uphold the child as innocence construct by establishing two primary villains:
To illuminate the role these concepts have in denying child sexuality or minors’ rights to sexual expression, I will engage with the legal discourse surrounding pornography made by minors, and then turn to the media construction of this phenomenon. Ultimately, I intend to demonstrate that initiatives motivated by a desire to protect are contributing to a social construction of childhood innocence that puts kids at risk. That risk and those harms take various forms. By penalizing minors for documenting their sexual desires, we hold them up to a standard of conduct they had no say in determining. When they point to the fallacies of the innocence construction, through their self representations, we punish them, labeling them as pornographers, exploiters and felons.
In addition to the damage they inflict on individual producers, these discourses of sexual self-exploitation affect a wider segment of the population, if more indirectly. The silencing of minors’ sexual desires and subjectivity encourages children in general to be ashamed of and/or deny aspects of their identities. But along with the emotional damage this ultimately may result in for minors, the cycle of silencing, shaming, and reaffirmation of innocence leads to other societal issues. Due to our current legislation and recent legal history, it is virtually impossible to hear a child’s voice on the subject of sexuality. This disregard for the “youth perspective” would seem to be, on the surface, a curious position for a culture renowned for its veneration of newness, freshness, and youth to adopt. But perhaps this silencing is more complicit with the U.S. adoration of youth than would first appear to be the case. Building on the work of child sexuality scholars who have approached their topic from a social constructionist perspective, I intend to show that by denying minors a right to sexual self-expression, we contribute to children’s endangerment. By making a minor’s sexual body into what must not be seen and her voice into what cannot be heard, we have, as Kincaid has noted, made children into the ultimate objects of desire. In effect, we are fostering the very audience or “market,” that child pornography laws and legislation seek to eliminate.
Child pornography in legal terms
Child pornography has not always been designated as a sphere of sexually explicit material distinct from pornography in general. The creation of child pornography as a distinct category of erotic material, and the elaboration of a specific set of standards by which to judge images of children, dates back to the 1982 Supreme Court case New York v. Ferber. The decision concerned the constitutionality of a New York state law that prohibited the
The court opinion upheld the constitutionality of the state statute and defined all child pornography as illegal, distinguishing it from adult pornography, which was only criminalized if it failed to pass obscenity standards established by Miller v. California (1973).
Citing the language of Article 263 of the New York Penal Law, the court defined child pornography as “the use of a child in a sexual performance.” A “sexual performance” is in turn defined as
And “sexual conduct” is then defined as
In determining the constitutionality of excluding child pornography from the category of speech protected by the First Amendment, the Supreme Court cited the state’s “compelling” interest in “safeguarding the physical and psychological well-being of a minor.” This argument rests on the notion that child pornography is the record of an abuse and that it is the responsibility of the government to intervene on behalf of the child, as the future of our society depends upon “the healthy, well-rounded growth of young people into full maturity as citizens.” The court’s judgment is founded on an assumption that people under sixteen are automatically damaged in a “physical and psychological” sense if they engage in any of the acts specified as a form of sexual performance. I am highlighting this detail not necessarily to dispute the claim, but rather to point out that the censorship justification is made on the grounds of an assumption about children and sexuality. According to the language of the court’s decision, any form of sexual activity, whether it is consensual or coerced, is damaging for a person under sixteen.
As evidence for this claim, the court cites the original language in the New York statute, which described an increase in the production and circulation of material involving the “exploitation of children as subjects in sexual performances.” It also refers to psychiatric research studies and texts published between 1978 and 1980, which link child pornography production with child molestation. Specifically, the court summarizes the research as claiming that
Regarding these studies, I think it is important to address the social context of when they were conducted and written. In his analysis of the construction of child sexual abuse as social problem, Philip Jenkins engages with different moments in U.S. twentieth century history and the ways in which the figure of the pedophile or child molester is constructed at different points in this history. While periods of panic alternate with eras in which the effects of incest or pedophilia are doubted or minimized, the ten-year interval between 1976 and 1986 is characterized by Jenkins as a time of almost national hysteria. In part due to feminist activism, which sought to present rape and domestic abuse as crimes of national proportion that deserved large-scale legislative measures, child sexual abuse in the mid-1970s became a topic of public outcry and national attention. Jenkins points out that while the increased number of individuals during this period who made public their personal experiences of abuse should not be disregarded, the media coverage of the topic magnified the prevalence of abuse beyond what was being documented in individual studies. Phenomena such as child sex rings, violent rape and serial murder of children and child pornography were constructed as problems that commonly occurred and that constituted an omnipresent threat to the safety of every U.S. child. It is therefore against this backdrop of widespread fear and inflated but widely circulated statistics that the research the Supreme Court decision draws from was conducted.