By MICHAEL ROSENBERG . . . Depending on personal experience, a person in violation of the law is a monster, an errant architect of his own fate, a heedless sinner, or a victim of a cruel system. The nature of crime is that it creates victims and perpetrators, but recently, the number of people prosecuted for crimes in which they are both victim and perpetrator is increasing and therefore making headlines.
Sexting is the new black sheep
Depending on who is doing the judging, a sexting scandal in a Virginia high-school is either a darn shame or a child-porn case on a massive scale. In Hanna Rosin’s Atlantic article Why Kids Sext, she reports on some of the unintended consequences of these situations.
The key components are:
1. A girl (usually a female, but not exclusively) will send a racy or nude picture to a guy on his cell-phone, aka “sexting”;
2. Her intention, according to Ms. Rosin, is either to a) share intimacy inside a pre-existing relationship, b) attract the attention of a potential future mate, c) get herself noticed on an internet-wide scale, or, and most disturbingly, d) because she felt pressured or was blackmailed into doing so;
3. The picture is sometimes shared, sometimes with malice, normally without, and this can lead to some embarrassment for the teens, parents of the teens, and the school administration if somebody reports the incident;
4. The decision lies with the parents or school as to whether to handle the issue in-house or make it a police matter;
5. The police and prosecutors, for their part, have some discretion as whether or not to charge/prosecute the persons involved;
6. In many cases, statutes have for years forced the hand of the courts in subjecting “victims” to prosecution when they produced the images of themselves, ostensibly perpetrating a “crime” against themselves.
At Louisa County High School, Ms. Rosin reports a situation involving a sizable collection of nude photographs of high-school girls, all under the age of 18, posted to an Instagram account. The pictures were taken by the victims themselves and sent to one trusted person who then violated that trust. Police became involved, and a large investigation ensued.
Soon, hundreds of interviews of students revealed a systemic problem: more than a third of the school was involved in sexting, either sending or requesting “sexts.”
Bearing down on the culprits
The charge of “production of child pornography” carries with it possible long-term imprisonment, invariably creating new registrants, often for life. The investigator in the case of Louisa County High, Major Donald Lowe, began the inquiry into the source of the pictures, ready to find the culprits and act according to the laws at his disposal. At first figuring all the subjects as victims and those disseminating the photographs as suspects, Major Lowe had a change of perspective, like so many who find themselves a part of a system they do not themselves fully understand. Legally, Major Lowe’s victims were also suspects, as they had both produced and sent the pictures.
His mind-set changed at some point, as evidenced by his characterization of the nature of the offenses and offenders, from “victims,” to, “I guess I’ll call them victims,” to “they just fell into this category where they victimized themselves.”
The issues needing immediate redress are two-fold: hasty legislation grossly over-stepping the role of parents of hormonal teens (who are going to express themselves sexually) and the need to give help to those who have genuine criminal conduct because attacking crime with vengeance is like the proverbial “bombing for peace.”
For the past decade, the United States Congress has created over 50 new crimes each year. In an article by John Baker on the growth of new federal crimes, he explores the difficulty in defining “crime” in the federal system, as the term is not given a specific definition. Instead, activities became crimes because Congress applied penalties.
So then, crime, a social construct, is given birth not by an actor in violation of a statute but by the creation of a statute criminalizing what was heretofore not criminal behavior. We create criminals where previously there was no crime and therefore no criminal.
In this way youth become criminals by doing what youth have done for centuries – except for centuries there was no permanent record of their curiosity and their experimentation, and they grew up and led normal, productive lives. Today their indiscretions are captured forever, and their lives are changed forever because of it.