Generally speaking, I am against laws that prohibit 'victimless' crimes, although my idea of what constitutes 'victimless' may be quite different from yours, especially if you are a particular kind of libertarian. I am, for example, perfectly prepared to entertain supporting laws banning activities in which the only immediate victim is the perpetrator, so long as a likely consequence of the activity is something that might harm the rest of us — or cost the rest of us money. Thus, for example, I support motorcycle helmet laws because the accident victims end up in public emergency rooms…and sometimes become public charges for years if the injuries are serious.
And I support laws against child pornography produced with real children. Not because I am convinced by the evidence that the material harms the people who acquire it or that it encourages to go out and hurt children (although the latter, if proved, would be a good reason for the law)—from what I've read, it seems at least possible that as many folks sublimate with the virtual stuff and leave the real kids alone. Rather, it seems pretty clear to me that the production of the stuff hurts the children used to make it in all sorts of ways, and that this alone suffices to ban its manufacture. It follows that one bans sale and perhaps also exchange and even possession in order to reduce demand. (Note that this means that the case for banning virtual child porn (i.e. the fake stuff) seems less strong to me.)
What then to make of the latest child porn case reported in Pittsburgh? (Updated)
According to the Pittsburgh Post-Gazette, Teen who posted own photo charged with child porn.
State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.
Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms.
A police report did not say how police learned about the girl. They found dozens of pictures of her on her computer.
She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.
To me this seems a real case of arresting a victim, the person the rule is designed to protect, and a fairly poor use of prosecutorial discretion. I could vaguely understand it if it were a profit-making business, but this sounds from the admittedly sketchy news report as if it's more a case of a confused, probably lonely, child who needs counseling (and friends), not a trial and a police record.
It's true that child porn is an unusually strict liability crime, in which possession alone, without intent or even knowledge, constitutes the offense. It's also true that police and prosecutors are not always reasonable about some kinds of offenses. Still, this prosecution simply cannot be what the drafters of this statute had in mind.
Police said they are trying to identify all the people who receive photos from the girl.
If the 15 year old in question sent racy pictures of herself to a boyfriend (or girlfriend) of the same age, or a would-be friend, it's also a little hard to believe that the recipient of the pictures deserves to be prosecuted…although if the recipient incited the photo session I suppose the issues start to get murky…
Update: A little reflection, and a moment's Westlaw, suggests that as regards the 15 year old's having copies of pictures of herself, she's arguably protected under Stanley v. Georgia, 394 U.S. 557 and Osborne v. Ohio, 495 U.S. 103 (1990). Stanley — something of an orphan in the law — holds that private possession of porn in the home is protected, but sharing isn't. Osborne is oft cited for the idea that child porn is outside the rule in Stanley…but in fact the case said that a state anti-child-porn law was constitutional because it protected minors from exploitation—and because the state courts had read in a mens rea requirement. This prosecution would fail at least the first of those tests, and probably both. But that doesn't speak as clearly to her exposure to prosecution for sending the pictures of herself.
But I could be wrong: I never have been very interested in the pornography jurisprudence of the Supreme Court, as it always seemed both contrived and arbitrary. I'm sure that many of my colleagues, readers, and other bloggers know the law in this area better than I. (Eugene, are you out there?)
In any event, the argument is surely suspect as it ignores the Llewellynian fact that what a case is thought to say is sometimes more important than its actual text…