BOB GARFIELD: According to a recent study commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy, and CosmoGirl.com, about one in five teenagers have sent or posted nude or seminude images of themselves online. While that’s not something most parents want to think about, ultimately it’s probably not that surprising. What is surprising is the fact that current child pornography statutes would classify all those photo-snapping minors as sex offenders, and prosecutions have been piling up. Mark Rasch is the former head of the Justice Department’s Computer Crime Unit and has worked extensively with the National Center for Missing and Exploited Children. He joins us. Mark, welcome to OTM.
MARK RASCH: Well, thank you, Bob.
BOB GARFIELD: Now, my understanding of what constitutes child pornography is, A, its intention to be prurient, and, B, there being a victim. But if the kids take the pictures of themselves, how is there a victim?
MARK RASCH: The statute that makes creation or possession or distribution of child pornography a crime, both federal law and state law, doesn't speak about there being a victim. All you look at is, is this a nude or seminude or suggestive photograph, and is the person depicted in it a minor? And that is enough to warrant a criminal prosecution for child pornography. There is a victim in some way, under some circumstances. Pedophiles do collect these pictures, so there is a victim, but I object to the idea of prosecuting that victim.
BOB GARFIELD: What are the penalties if a minor, first of all, is convicted of distributing pornography?
MARK RASCH: Most of these cases result in probation or something like that, but there’s a very real possibility that people can be prosecuted either as adults or when they become an adult for things that they did when they were 17 years old. And in that case, they can be sentenced to draconian punishments, up to and including life in prison.
BOB GARFIELD: Is there anyone who is actually in prison over this kind of photo?
MARK RASCH: Yeah, there have been kids who've been put in jail for, you know, weeks or, you know, 30 days and the like.
BOB GARFIELD: At some point in prosecutions like this, it seems obvious that the damage done to the victim by the prosecution far exceeds the damage done to the victim by the crime itself. But it seems to me that the situations that have been described, at least in what I've read, involve one kid taking a picture of a consensual sex act and distributing it maybe with only the tacit agreement of the other party, or maybe no agreement at all. So maybe this should be legislated against in some way.
MARK RASCH: I don't have an objection to saying that this is wrongful conduct and that it needs to be deterred, but you deter this type of document with education and not with criminal prosecution. If you want to make this a crime for a minor to take a picture of themselves and send it to another minor, then you need to create a statute to do that, and debate that statute. But to use the child pornography laws to go after the person themselves who’s depicted in the image I think is a perversion of the law.
BOB GARFIELD: Now, there’s an old joke, the punch line of which is, what do you mean, I'm telling everybody? [LAUGHS] Particularly in this demographic, I suppose it is natural to want to, you know, boast or share or whatever what is deemed to be sexual triumph. Should the law be dealing with this kind of exhibitionism?
MARK RASCH: If you mix hormones, alcohol and technology, you have a prescription for disaster. Say a girl takes a picture of herself and sends it out to six or seven people in her high school. Those people, the people who receive it, sometimes without solicitation, they're criminally prosecuted for receiving child pornography and possessing it. If they then retransmit it, they're also guilty of transmission. And I think that that type of activity, those types of prosecution, when you have 20 percent of kids doing it, is a dangerous problem.
BOB GARFIELD: Are we just defining deviancy down or do you think that this exact type of behavior would have existed when we were in high school if we had access to camera phones?
MARK RASCH: Twenty years ago, if a child wanted to take a naked picture of themselves, they'd have to get a camera, take the photograph, take the film, have it developed, then take those pictures and hand them to somebody else. And in one sense, that mere technological barrier prevented a lot of this from happening. I think that social mores have changed somewhat because of the technology. People are more exhibitionist, children are more exhibitionist in their lives generally. They Twitter, they Facebook, they blog, and they're leading much more of their lives online, and this is a logical and natural extension of that. But what these kids don't realize is the pictures that you take on a whim with a cell phone camera are going to be out there and available for 30, 40, 50 years, and they're going to be distributed all over the world. And they need to understand that there are sort of individual consequences to them, putting aside the legal consequences.
BOB GARFIELD: All right, Mark. Well, thank you so much.