AUSTIN, TEX. – It is important to understand the legislative and social lay of the land for child pornography and related issues, such as sexting and revenge porn, according to Nicole Sussman, MD.
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Dr. Sussman of Cambridge (Mass.) Health Alliance provided an overview of the history of child pornography legislation before discussing the current landscape and the unique challenges and risks it presents to autistic youth at the annual meeting of the American Academy of Psychiatry and the Law.
History of U.S. child pornography laws
The Protection of Children Against Sexual Exploitation Act, passed in 1977, criminalized the act of forcing a child to engage in sexual activity. But it wasn’t widely cited. Little awareness existed around the issue until New York v. Ferber in 1982, which upheld a New York statute that outlawed distribution of material depicting children under 16 years of age engaged in sexual acts. The U.S. Supreme Court linked child porn to sexual abuse of a child and determined that the only way to control production of child pornography was to regulate distribution of it.
Shortly thereafter, the Child Protection Act of 1984 limited the production, distribution, and possession of “materials involving the sexual exploitation of minors even if the material is not found to be ‘obscene.’ ” The law also raised the age of a minor for the law’s purposes to anyone younger than age 18 years, removed the requirement that the materials be sold (free distribution was now also regulated), and authorized interception of communications to investigate offenses.
Two years later, the Child Sexual Abuse and Pornography Act and the Child Abuse Victims’ Rights Act strengthened child pornography laws; the first made it a federal offense to advertise “any product depicting sexually explicit conduct with a minor or the opportunity to engage in such conduct with a minor.”
More regulation followed with the Child Protection and Obscenity Enforcement Act of 1988, which added regulation of child pornography on computers, and the Child Pornography Prevention Act of 1996, which regulates all forms of online/virtual child pornography.
The first weakening of these laws came with Ashcroft v. Free Speech Coalition in 2002, which held that the 1996 law was overly broad, with the potential to violate free speech, since prohibition of images that “appear to be” or “convey the impression” of child pornography might not necessarily have actually involved child exploitation.
Finally, the Adam Walsh Child Protection and Safety Act of 2006 established the national sex offender registry and mandated convicted offender requirements for reporting their whereabouts based on the “tier” of their crime.
Today’s landscape: Internet use and pornography
With all that legislation as a backdrop, the intersection of growing use of mobile technology, online pornography and sexting can become thorny.
Recent data show that 95% of teens aged 13-17 years have access to a smartphone – independent of their race, sex, ethnicity, or socioeconomic status. Nearly half of teens (45%) report that they are online nearly constantly, Dr. Sussman said.
And pornography is free and easy to find online. A 2006 survey of New Hampshire college students found that 72% of them had seen porn before age 18 years – and that’s decade-old data.
A 2013-2014 survey of 16- and 17-year-olds in Boston found that about half (51%) reported watching porn at least weekly, and 54% watched porn to learn how to do something. Further, 30% of youth in that survey said porn was their primary source of sexual education, followed by parents, cited by 21%.
Put these realities together, and you encounter sexting, the act of sharing “sexually explicit images, videos, or messages through electronic media.” Research on the prevalence of sexting varies widely, with estimates up to 60% of teens. Though prevalence estimates depend on definitions, recent studies suggest that one in four teens send “sexts” and one in seven teens receive them, Dr. Sussman said.
But these figures should be considered alongside an understanding normal sexual development among adolescents. Sexting might simply represent a normal emerging component of sexual development within the context of today’s society, Dr. Sussman said. Sexting often is viewed by youth as a way to initiate and maintain relationships, she said.
Nevertheless, teens might not be able to fully appreciate the risks associated with sending or receiving sexually explicit texts. One in eight teens report being involved in nonconsensual sexting, whether as recipient of an unsolicited sext or as the subject of one.
Sexting also can take the form of “revenge porn” and “sextortion,” in which sexually explicit electronic images are distributed as a form of revenge or are threatened to be distributed.
Early legislation related to sexting has led to litigation, such as the case of 16-year-old A.H., who was charged with producing child pornography after she emailed her 17-year-old boyfriend images of the two of them engaged in sexual activity. She argued she had a right to privacy. But the court disagreed, finding the state had a compelling interest “in protecting children from sexual exploitation,” regardless of “whether the person sexually exploiting the child is an adult or a minor.”
By 2008-2009, about 4,000 cases involving minors sexting were making their way through the courts, demonstrating a “need for laws to evolve and to consider developmental context,” Dr. Sussman said. Punishment could be severe, including requirements for youth to register in the national sex offender registry. Today, however, 25 states have laws differentiating sexting from child pornography.