Everyone is opposed to child pornography so there’s never much of a public outcry when a violator receives a harsh sentence. However, is there ever a case where a punishment is too severe or even unwarranted? Consider the recent case of the teenage girl named C.S.
The child pornography in question is a sex video of two consenting teens, a 16-year-old girl and a 17-year-old boy. The boy kept the video on his phone for a year. During that year, the boy posted the video onto the Internet, which his former lover complained about to the police. Soon after, the boy sent the video to C.S., who then posted the video onto Facebook. C.S.’s attorney claims the only motive for posting the video onto Facebook was to harass the girl in the video.
In 2012, C.S. was prosecuted by Pennsylvania’s District Attorney on child pornography charges. Judge Robert Steinberg dismissed the case. Judge Steinberg agreed with C.S.’s attorney that child pornography laws were meant to protect children from sexual abuse, not to punish teens for their lack of foresight. The trial judge also believed that the law violated the Constitution by depriving “a teenager of ordinary intelligence ‘fair notice’ of what is prohibited.” The Pennsylvania Supreme Court reversed, holding that Judge Steinberg had overstepped his authority by using an argument not presented to him by one of the attorneys.
Why This Case Is Ridiculous on at Least Three Levels
First, it is not “child” pornography if the “children” engaging in sex in the video are 16 and 71 years old. Given that Pennsylvania’s age of consent is 17, the teens in the video were legal consenting adults.
The latter, if successful, would require that C.S. be placed on the sex offender registration, a punishment which would be disproportionate to the crime. I’m not suggesting that C.S. shouldn’t be punished or that the girl in the video deserved to have that video of herself posted online. However, C.S.’s attorney was correct in saying that the appropriate charge should be harassment, not child pornography.
Second, the DA’s decision to prosecute C.S., but not the 17-year-old boy who gave her the video, is sexist. The boy had the video in his phone for about a year. If the DA was serious about possession of child pornography, it should have launched an investigation against the boy as well. Accusing C.S. of distributing child pornography also seems like a double standard if the boy also posted the video online. Even if the DA did not intend to engage in gender discrimination, prosecuting one gender but not the other gender for the same crimes in the same case leaves a bad impression.
Of course, this entire situation could have been avoided if C.S. had refrained from posting a sex video on the Internet. Did she have a free speech right to post sex videos of other people online? To be clear, free speech does not protect people from posting child pornography online. However, pornography depicting adults is a gray area. The Supreme Court has long permitted laws which ban “obscenity.”
The problem is that courts have been unable to come up with a definition for “obscenity.” Simply outlawing depictions of nudity or sex is not possible because scientists and doctors need to discuss and distribute papers or videos about sex to treat certain conditions. Even worse, the porn industry has actually succeeded in outsmarting judges on a few occasions. When the Supreme Court ruled that videos were obscene because they lacked any social value, some pornography studios had the participants read medical or legal journals while they engaged in sex.
In this case, civil law might be a better solution than criminal law. The girl in the video can still sue C.S. for harassment. C.S. is also in violation of Facebook’s policy not to post sexual content. Breach of contract with Facebook is a minor offense compared to a criminal trial for child pornography, but restricting one girl’s ability to access Facebook is better than twisting child pornography law to punish someone who didn’t commit that specific crime.