The Trouble with Teenagers and American Child Pornography Law

This paper is concerned with the contradictions which have emerged in American law and policy as millions of young people, perhaps even the majority, have now become unrecognized sex criminals. The historical reality is that as the Internet became popular in the 1990s, fear grew over the mix of anonymity, Internet predators and the naivety of child web users. In response, child pornography laws were strengthened as the “evil” to be criminalized became twofold: 1) the producers (via the production process and sale of such images) as well as 2) the images themselves (via their possessor). It was only a decade or so later that the growth of Internet-accessible phones with camera technology became widely available to teenagers. This historical reality, which in many ways is simply an accident, accounts for the strict child pornography laws that, in hindsight, have been very poorly written. The intended beneficiaries of the laws are often now committing crimes, reliant upon the goodwill and common sense of prosecutors to not bring charges against them. However, in general, many of these children will become de facto criminals living in a weaker and weaker legal position over time, at least for as long as they continue to possess those images. For example, public opinion may tolerate an 18-year-old man with a memorial nude photo of his former girlfriend, taken when they were both 16. Public opinion, and most likely the law as well, will grow less tolerant as he ages and in particular if he does not marry that girl. The law in practice often does not live up to the law in theory. The paper has three substantive sections: it summarizes the historical development of the law, explores the legal issues surrounding teens and their phones, and hints at potential solutions to the current dilemmas.