Jail for Juvenile Child Pornographers?: A Reply to Professor Leary
Stephen F. Smith, 15 Va. J. Soc. Pol’y & L. 505 (2008)
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In a provocative article recently published in this Journal, Professor Mary Graw Leary advocates a new role for the criminal law to play in the effort to eradicate child pornography. The criminal law, of course, has been widely and aggressively used against those who produce, distribute, or possess pornographic depictions of children. These enforcement efforts, however, have largely focused on cases involving images in which adults coerced or enticed young minors into performing sexual acts
Although it makes sense to focus limited enforcement resources on pornography produced through the sexual abuse of children, Professor Leary notes that a nontrivial amount of the child pornography available today is not produced by adults. Instead, without any involvement by adults, teenagers are increasingly choosing to create and disseminate sexually explicit images of themselves. Professor Leary advocates extirpating this type of pornography, which she terms “self-produced child pornography,” by prosecuting the minors who create and distribute it
In this Comment, I respectfully take issue with Professor Leary’s thesis that criminal prosecutions are an appropriate response to the problem of self-produced child pornography. Before doing so, it is worth noting the substantial common ground that lies between us. We are both deeply troubled by the proliferation of child pornography of all forms (including the “self-produced” variety) and the sexual exploitation of children. We agree that it would be better for the individuals involved, and for society as a whole, if minors did not produce or distribute pornographic images of themselves. Where some might see the “sexual liberation” of teenagers, we see a major social problem that exposes minors not only to the potential for a lifetime of shame and emotional distress, but also to the danger of sexual abuse at the hands of pedophiles and sexual predators.
Even though Professor Leary and I are united in the goal of protecting children against sexual exploitation, we part company on the proper societal response to the problem of self-produced child pornography. In my view, children who produce and distribute pornographic images of themselves ordinarily should not be regarded as proper objects of punishment. In this context, child protective services, backed up if necessary by the threat of criminal prosecution, is a much more appropriate way of reforming minors and protecting them against the serious dangers to which they expose themselves by creating and distributing pornographic images of themselves. A prosecution-based response, though essential for sexual predators and others involved in the sexual exploitation of minors, would create far more problems than it would solve for minors who make the mistake of creating and distributing pornographic images of themselves.
