A libertarian says "think of the children" in calling for less law
Saturday, February 28, 2015
Discussions of "sexting" in the media and on websites advising young people and their parents, focus on the risks to teenagers of being coerced, blackmailed or subjected to "revenge porn".
There is another, perhaps worse, risk from the criminal justice system.
Firstly, the law on this subject is very badly drawn, having been enacted in the course of a moral panic about child pornography. Secondly, Britain has the lowest age of criminal responsibility in Europe: just ten years old. It is a criminal offence to create, publish or possess pornographic images of a minor. There is no carve-out, as in wiser jurisdictions, for images exchanged between minors. They are just as guilty, ludicrously, as an adult pornographer making an image of them. Or an adult pervert sending them pictures of his or her genitals.
Surely the law should protect children against sexual exploitation by adults, not from their playing the digital version of "doctors and nurses"? Even your august and respectable blogger has memories of a game of strip poker backstage during a school play that could have had legal consequences had the smartphone been invented (and this law been in place) in the 1970s.
I would not encourage a child to commit their genitalia to digital immortality. Of course I wouldn't - for all the good reasons mentioned above. But if he or she made the common mistake of doing so (I have seen estimates as high as 40% of British teenage girls having published sexual images) I do not think a criminal conviction or worse - a lifetime on the sex offenders register - should be the consequence.
Given how common this crime is, why are more children not convicted? Most offences go undetected or are detected only by sensible parents who quietly deal with it themselves. Where complaints are made, the police and Crown Prosecution Service mostly choose not to enforce a terrible law that would trash young lives without in any way serving the public interest. God bless them for that. Practically, irate parents complaining about an erect member on their daughter's smartphone are usually less keen for the boy to be prosecuted when they realise daughter dearest is just as guilty. And vice versa.
Prosecutorial discretion however is not justice. Far from it. It is the very opposite of the rule of law because it subjects us to the whims and prejudices of the men and women concerned. We need only good laws, which is to say necessary laws that protect citizens from genuine harm, and we need them consistently enforced.
Even if a case is not pursued, vulnerable young people at a point in their lives where their sexuality is often as alarming and worrisome as it is fascinating and compelling are having their studies disrupted and their lives turned to horror. Imagine the police telling your mum or your headmaster about your sexual indiscretions and showing them your bits. All for being just as horny, stupid and normal as your forefathers and foremothers, but in a more technological age.
When the politicians come calling in election mode and ask what they can do for you, please consider mentioning this injustice they have wrought and asking them to fix it. Give them a copy of this post and ask them to email email@example.com. I will be happy to help them draft an amendment to the law, entirely free of charge.