The Instigator
duckiejen23
Pro (for)
Winning
25 Points
The Contender
ReformedArsenal
Con (against)
Losing
3 Points

Minors Should not be Charged with Felonies Due to Sexting

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Voting Style: Open Point System: 7 Point
Started: 3/27/2011 Category: Politics
Updated: 6 years ago Status: Voting Period
Viewed: 4,663 times Debate No: 15629
Debate Rounds (3)
Comments (11)
Votes (6)

 

duckiejen23

Pro

Prosecution of juvenile sexting has recently become a hot-button issue due to the harsh felonious penalties associated with the dissemination of sexually explicit images of minors. Minors throughout the nation have been prosecuted for producing, possessing, and/or distributing child pornography the penalty of which has been a combination of prolonged prison terms, fines up to $10,000, and/or registration as a sex offender under the jurisdictional Meghan's Laws

While consensually-produced images may fall within the traditional notion of child pornography, no adult-induced child sexual abuse results in its production as to render it outside the protection of the First Amendment Protection. This, coupled with the degree of privacy rights enjoyed by minors in connection with intimate relationships, warrants treating self-produced material as something different than child pornography.

In this debate, I will argue that sexted images fall outside the scope of child pornography laws and charging minors with child pornography penalties falls within protection of the First Amendment- freedom of expression.
ReformedArsenal

Con

My opponent's argument flows as follows.

A) No adult-induced child sexual abuse results in [images produced by sexting's] production.
B) Since no adult-induced child sexual abuse occurs, it is not a violation of first amendment rights.

Rebuttal:
I think if we simply look at the definition of the two words in question we will see the answer.
Child: a person between birth and full growth [1]
Pornography: writings, pictures, films, etc, designed to stimulate sexual excitement [2]
Sexting: the act of sending sexually explicit messages or photographs, primarily between mobile phones. [3]

Sexting is the act of one person sending sexually explicit photographs or videos to another person with the hopes of stimulating them sexually. Often times these messages are designed to entice the receiver into participating in sexual acts later. By all definitions it fits the definition of Pornography.

When a person under the age of 18 participates in this, they are by definition creating pornographic images of a child.

While I do not disagree with the idea that perhaps the punishment for minors should be different than it is for adults, I do believe that they should be charged with a felony crime. Similar to how children who commit murder are still charged with a felony, but the punishment is different.

Let me pose a question to the readers to consider. If a child rapes another child, is it not abuse simply because there was no adult-induced child sexual abuse? Of course not, the child is still abused and objectified. The same is true in the case of sexting.

[1] http://dictionary.reference.com...
[2] http://dictionary.reference.com...
[3] I apologize for the use of Wikipedia, Sexting is not a term that has been defined in dictionaries so my choice was between wiki and urban dictionary... between the two, Wiki wins. http://en.wikipedia.org...
Debate Round No. 1
duckiejen23

Pro

Introduction:
Before I complete my rebuttal, I would like to clarify a key point regarding section B: My argument stands that sexting falls under the protection of the first amendment freedom of expression because it is not categorically excluded based on statutorily defined child pornography laws. I will assume my opponent his mistakenly used First Amendment rights rather than Child Pornography Laws in explaining my position in section B. However, if my opponent intended First Amendment rights, I will address that argument in subsequent rounds.

Definitions:
It is important to note that the exact definition of child pornography various from state to state. Simply defining "child" and "pornography" and putting those definitions together does not fully explain the elements of what constitutes child pornography. For the purposes of this debate, I will elude to the federal standard which criminalizes "any person who employs, uses, persuades, induces, entices or coerces any minor to engage in.. any sexually explicit conduct for the purpose of transmitting a live visual of such conduct. [2] I will concede to my opponent’s definitions of "pornography" and "sexting" but clarify that "child" is defined under the law as a person whom has not yet reached the age of maturity which, according to federal law, is age 18.

First Amendment Protection:
“Congress shall make no law.. abridging the freedom of speech.”[1] Despite the intrepid language, protections of the First Amendment are not absolute. Obscene speech lacks First Amendment protection because of its relative lack of value. The Miller court set forth the prevailing standard for determining whether a particular work amounts to obscenity: “the offense must be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way and which, taken as a whole, do not have any serious, literary, artistic, political or scientific value.” Mind you, this is an incredibly high standard to meet. Almost anything can be considered artistic. A pose in a picture is an example.

In New York v. Ferber, the court allowed states greater latitude in criminalizing the sale of child pornography and stated that it did not have to meet the Miller Obscenity standard in order to be outlawed. Ferber listed 5 reasons why child pornography did not warrant First Amendment Protection. My opponent has only focused on one of the elements, harm to the child, which according to Ferber falls within physical and psychological harm, sexual abuse, and exploitation of a child, [3].

Later cases clarified that depictions of nudity, without, more, constitute protected expression under the First Amendment Freedom of speech. [4] All three cases mentioned above have agreed that Child pornography law’s most important goal is to prevent the exploitation and abuse of children. As such, courts have been adamant that “where the speech is neither obscene nor the product of sexual abuse, it.. fall[s].. [within] the protection of the First Amendment.” [5]

Child Pornography Laws:
Although there may be subsequent harms from sexting images, “harm [that] does not necessarily flow from the speech but depends upon some unquantified potential for subsequent criminal act” [5] is outside the scope of child pornography statutes. Without a causal link to criminal activity, the images are protected by the First Amendment unless they are classified as obscene based on the Miller Standard.

In order to ascertain whether sexting has First Amendment protection, it is necessary to determine if the images contain the same harms as child pornography articulated in the Ferber case: (i) physical and psychological harm, sexual abuse, and exploitation of a child.

Due to the consensual nature of sexual acts and photographing those acts, it is difficult to apply the exploitation rationale behind child pornography laws. When an adult is involved with the creation of sexually explicit images of minors, there is an inherent power imbalance and money is more likely to be offered. None exists in sexting cases. Further, using the federal statute cited to above implies that the act requires a minimum of two people: the “any person” and the “any minor”. How can one use, persuade, induce, entice or coerce oneself? If child pornography statues are meant to protect minors from abuse by others, then the statutes do not apply to minors who voluntarily make and send their own nude and semi-nude pictures to others. One’s “autopornography” (documenting one’s own legal sexual conduct and nudity) does not involve exploitation of the self nor does it allow for the two person interaction as implied in the federal statute.

Punishment:
My opponent stated that punishment for minors should be different than adults. Unfortunately, sexting images created by minors for minors are considered child pornography whereas adults who sext one another are protected under the first amendment freedom of expression. My opponents argument does not stand because children who commit murder are charged with the same crime as adults whereas with sexts, children are charged far harsher than adults for the same crime. Rape is a similar example. What is being punished in rape and murder is the action of the of the minor, what is being punished with sexting is the age of the sextor.

[1] U.S. Const. amend.I.
[2] 18 u.s.c. 2252
[3] 458 U.S. 747 (1982)
[4] Osborne v. Ohio, 495, U.S. 103, 108 (1990).
[5] Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002).

ReformedArsenal

Con

Rebuttal - First Amendment Protection
The Miller Standard: When broken down to its component parts we see that it has three criterion.

The first is that it must be limited to works which, taken as a whole, appeal to the purient interest in sex. If it does not appeal to the purient (lustful) interest in sex, it cannot be considered obscene. Since images sent via sexting are intentionally meant to bring about lustful interest in sex, it can be considered obscene if it meets the other requirements of the Miller standard.

The second it must depict/describe, in a patently offensive way, sexual conduct specifically defined by applicable state law. Since all states, and federal law, has a ban on images portraying children having sex or posing in sexually explicit ways, it fulfills this requirement and can be considered obscene. Furthermore, any ethically responsible adult would find sexually explicit poses for of children to be offensive.

The third requirement is that it lacks serious, literary, artisitic, politcal or scientific value. My opponent must prove that the work contains any value in the afformentinoed categories to invalidate it as obscene. As I'm sure the vast majority of adults would find childen posing in sexually explitic ways to be lacking value in these categories... this criterion also allows us to deem sexting as obscene.

As I have shown, sexting meets all three criterion for obscene standing, and therefore is not protected by Freedom of Speech.

Rebuttal - Child Pornography Laws
As I have shown above, the images in question do not meet the Miller Standard, they are not protected under free speech. Since they contain pornographic (images intended to elicit sexual arrousal) photo of minors, they are by definition child pornography.

Rebuttal - Consensual Act vs Exploitation
There are many precedents for not treating children as consenting adults in various legal situtions. A child cannot enter a contract without a parental/guardian signature (even with another child). A child under the age of 16 cannot drive. A child under 18 cannot purchase tobacco or pornographic images or consent to military services. An adult under the age of 21 cannot purchase alcohol. To put it plainly, children are not given consentual rights on many things, and distributing pornography is one of these things. Furthermore, children under the age of 18 are not even allowed to view pornographic images of adults.

As far as the exploitation question. Children can coerse and exploit each other. The 16 year old girl who is coersed into having sex with her boyfriend or he will leave her, is being exploited. The 12 year old boy who is molested by his 15 year old cousin is exploited.

Also, one can exploit themselves. Many would argue that a girl who prostitutes herself to buy drugs s exploiting her body to support her drug addiction.

Rebuttal - Comparing Child Sexting to Adult Sexting
We are not talkig about the action of adults. We are talking about the action of children. I suppose if we want to be consistent, we should charge adults who sext without the proper licence to create and distribute pornography with the appropriate law. However, the fact that they are not charged does not mean that children should not be charged.

Debate Round No. 2
duckiejen23

Pro

A. First Amendment Protection re: the Miller Standard
1. Burden of Proof

My opponent argues that the sexted image, taken as a whole, appeals to the prurient interest in sex. However, as I mentioned in previous rounds, the obscenity standard as it applies to First amendment protection is a difficult burden for the Con side to meet. Due to the high scrutiny that courts routinely prescribe onto legislation that attempts to restrict speech, the burden to show that sexting meets a prurient interest in sex lays with the Con rather than the Pro.

“In order for the government to prosecute an individual based upon an allegedly obscene depiction of sexual conduct without violating the first Amendment, the “offense must be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way and which, taken as a whole, do not have any serious, literary, artistic, political or scientific value." [1]

Courts have routinely required the prosecution, in this case, the Con, to validate that specific work amounts to obscenity prior to switching the burden onto the defendant, in this case the Pro. As such, the Con has reputable presumption to showcase why sexted images fall within obscenity prior to a switch in the burden of proof.
2. Prurient interest in sex
In the interest of defending my position, I appeal to the Con to show how semi-nude or nude pictures or teens are any different from nude baby pictures to warrant a prurient interest in sex. Both are children, both showcase genitalia, both routinely smile. Further, without an in depth analysis into individual sexted images, I implore the con to explain why images of teens in bras and/or panties are obscene whereas a teen in a two piece bathing suit does not appeal to the prurient interest in sex. Per the mutually agreed to definition of sexting, nude or semi-nude images fall within the realm of sexting. And yes, girls in their bras without showcasing genitalia have been prosecuted under child pornography laws. [2]
3. Artistic value
As to the third requirement of Miller, I stated in the first round that photography and posing is relevant to artistic value. Again, the burden of proof rests on the Con to show why these images are NOT artistic per court scrutiny and the rebutable presumption standard. As mentioned above, courts maintain a rebutable presumption on the Con that all speech is protected by the first amendment until proven to be obscene. Only then does the burden shift.


4. Patently offensive

My opponent would like you to believe that "all states, and federal law, has a ban on images portraying children having sex or posting in sexually explicit ways" and thus is considered patently offensive. Unfortunately, this statement, to put mildly, simply false. Images that do not use actual children, such as digital pornography, adults posting as children, or actual child faces being placed on digital pornographic bodies, fall within the protection of the first amendment. [2] If digital child pornography is deemed to fall under first amendment protection, clearly it is not patently offensive to warrant it obscene.
B. Re: Child pornography
After successfully rebutting my opponents false claims on first amendment freedom of speech, I return this debate to its original question: Does sexting fall within the realm of child pornography as defined by statute.
a. distributing pornography.
My opponent is correct that children cannot distribute pornography based on a state interest in protecting minors from materials that the state deems harmful. However, this statement is irrelevant to the question at hand. Many states allow consensual sex between minors, or have laws allowing minors to engage in consensual sex within a certain age range. The punishment of sexting is not the act, it is the documentation of an allegedly "sexual" act.
b. coercion:
My opponent is also correct that minors are able to coerce and exploit each other. However, as I stated in previous rounds, the statute is concerned with "any person" coercing "any minor". Unless a minor "coerces" another to take sexting photos, the actions do not fall within the statute because the photographs is taken by the child itself without another individual being in the room. To be quite frank, comparing a nude picture of oneself to voluntary prostitution is a bit hyperbolic for the purposes of this debate.
As mentioned in previous rounds, the purposes of child pornography statutes is to the protect minors from adult exploitation. This purposes has been quite clearly stated in the Ferber, Free speech, and Osborne cases which are the primary authority in child pornography precedent [3]. In sexting cases, images are produced for minors, by minors without any coercion or power imbalance that is analogous to the adult exploitation of children. My opponent refereed to the exploitation of a girl who prostitutes in order to purchase drugs as exploiting herself. I am having difficulty understanding how she is "exploiting her body". In any case, self exploitation was not the statutory intent of the law nor does it allow for such examples to be used in warranting such a distinction. The statue speaks of a minimum of two people: "any person" and "any minor" which makes the previous argument lack merit in respect to this debate.
C. Adult sexting to child sexting:
The purpose of bringing this section to the forefront of this debate was a direct rebuttal to my opponents argument that a child who commits murder should be charged with murder because adults are charged with murder. I agree that this is an irrevelant segment of the arguments put forth and perhaps better saved for future debates. Further, I am not aware of the "proper license" my opponent refers to in creating and distributing pornography. My research concludes the pornography falls within protected speech with or without license. Without any authority to understand what he was alluding to, I cannot respond to this comment.
[1] 77 Tenn. L. Rev. 1, 9.
[2] Ashcroft v. Free Speech Coalition, 535, U.S. 234, 249 (2002).
[3] Osborne v. Ohio, 495, U.S. 103, 108 (1990).
ReformedArsenal

Con

I would like to thank my opponent for his banter. Since this is my last round and I am pressed for time, I will make it extremely short.

My opponent seeks to shelter sexting under freedom of expression. He claims that images of young girls or boys posting in sexually elicit ways in a nude or semi-nude fashion is not obscene. To do this he would either require us to believe that it does not appeal to lustful sexual desire, includes value (most commonly argued to be artistic), or does not fit the category of patently offensive.

Sexting by definition is an attempt to elicit sexual arousal in the one receiving the photo/message. If it did not appeal to prurient sexual interest, it would have no purpose... this point in my opponent's argument is counter intuitive and logically inconsistent. In response to my opponent's argument regarding infants or very young children. Some people DO indeed find this appeals to their prurient sexual interests, however... I think anyone reading this can acknowledge that there is a physical difference between a toddler and a 15 year old. The features that are found to be sexually attractive to the opposite sex do not begin to develop until puberty. This argument is a reduction to absurdity and should be discarded.

In order for these images to contain artistic value, we would have to assume that a young girl (usually a girl is sexting images to a boy) has the intention of creating an artistic pose and be capable of doing so. This is not the case in the vast majority of sexting incidents. I'll let the voters determine if they believe that a young girl attempting to sexually arouse someone on the other end of a cell phone is artistic.

Finally, we come to the issue of patently offensive. My opponent claims that images of children that are drawn or digital is not patently offensive. I would hope that the readers would disagree. However, for the sake of those who do not, I will explain the difference. Children posing nude is found patently offensive not because of anything about their physical appearance. The difference between a 17 year old girl and an 18 year old girl in terms of body structure and appeal is negligible. What is patently offensive is that the person being photographed is a child, that they are not an adult. This very fact is why digital, illustrated, or pseudo-child (Adults who are made to look like children) pornography is not patently offensive. Again, I will leave my readers to make this decision on their own.

However, if my readers concede that photographs or video of children "are intended to appeal to prurient (lustful) sexual interest," "lack artistic value," and "are patently offensive" they must concede that the photographs that these children are producing are not protected by first amendment laws. They are transmitting them to other minors who A) are not allowed to view pornography in the first place, and B) Often times show their friends. So they are not only creating child pornography, but they are distributing it as well. Since my opponent has not made a case as to why we should treat this form of child pornography different than other forms of child pornography, and rather simply tried to assert that it is not child pornography, you must vote solely on if we have proven that it is indeed child pornography or not. I have presented a case that undermines his explanation as to why it is not, and have done so successfully.

Thank you for your time.
Debate Round No. 3
11 comments have been posted on this debate. Showing 1 through 10 records.
Posted by duckiejen23 6 years ago
duckiejen23
As far as appealing to a jury, yes you are correct. However, you do this with evidence. Simply saying, "what is the moral thing to do in this case and rule that way" would make our justice system a mockery and based on subjective, rather than objective factors. In either case, the debate is over so its not necessary to go into our respective techniques. Given our education, I'll leave theology to you and you should probably leave the intricacies of the legal system to me.

Connection to a seminary education, Yale or otherwise, was a snark at religion and not your particular school nor you as an individual. I have yet to meet an educated theist who is able to connect OBJECTIVE evidence to his or her beliefs. There are quite a few debates on this site regarding religion and all of them have one thing in common: they appeal to the emotional rather than the logical human psyche. I was simply referring to the common denominator that connects you all. Lastly, nothing DESERVES respect. It is earned.
Posted by ReformedArsenal 6 years ago
ReformedArsenal
My apologies for referencing gender, I am used to doing bible translation and in other languages when you do not know the gender of a person you use a masculine pronoun. I meant no disrespect or implication.

As far as "judges" I wasn't referring to the Judge in a court case, I was referring to the judges in a debate. In a court case, it isn't unusual to appeal to the perspectives of the Jury, that is part of why the jury selection process is so important. A good lawyer can build a case that appeals to what the Jury thinks of the evidence in addition to the evidence alone. Getting an expert witness to explain something that the majority of people understand is an example. If I have a fingerprint, everyone knows how fingerprint's work in terms of uniqueness. But if I have an expert witness testify and simply explain the process of fingerprinting, it makes my case longer. In the same way, if the defense brings in an expert that calls into question the accuracy of the fingerprinting or fingerprints in general, they change the jury's perspective.

As far as connecting that tactic to a seminary background, that was uncalled for. Seminary is a graduate school level program, they are accredited, and deserve your respect (Might I remind you that Princeton, Harvard, Yale, and several other Ivy League schools also have divinity schools/seminaries attached to them). Furthermore, you don't know anything about the particular seminary I attend, and it is uncalled for to attack my education because you disagree with my tactics. This is akin to me saying "Well, of course she is saying this... she's from California... and they have the most liberal laws you can find." It's uncalled for an inappropriate.
Posted by duckiejen23 6 years ago
duckiejen23
I'm a little confused.. You just said that "appealing to the judges personal perspectives is perfectly legitimate" and yet are upset when I said that you appealed to emotion rather than logic. Does your anger stem from my attack on that position or the connection of that tactic to a seminary background? And by the way, I am in the legal profession and appeals to emotion in court rarely cut the mustard. Those that do are quickly appealed and rendered inadequate.
Posted by Bob_Gneu 6 years ago
Bob_Gneu
It is a shame that you are offended by that, considering you didn't bother to confirm that she was a woman before assuming she was a man. I would have been just as irritated as she seems to have been.

Regarding your inability to understand the topic, you showed no understanding of the topic aside from a superficial appreciation for the definitions. Maybe Jen didn't do the greatest job illustrating what she was talking about, but you could have recognized that this was not a superficial debate from the get go when court cases were being cited. This is not a personal attack, it is simply a statement of fact. You did not support your position well and did not read the debate citations (well enough) before responding to them.
Posted by ReformedArsenal 6 years ago
ReformedArsenal
Well, duckiejen23 seems to see fit to insult my education as a seminarian... you seem to think I did not understand the topic, which is not true. Those things both seem to be insults. Was the snipe about my seminary background really necessary? Was it necessary to imply that I don't understand the topic?

I simply took an approach that you disagree with, that does not mean that I did not understand it. Appealing to the judges personal perspectives is perfectly legitimate, and my argument banks on the fact that most readers will believe that sexting fits the bill of obscene, and is therefore not protected. It's a gamble, but it is a legitimate debating tactic that has won many court cases and debates.
Posted by Bob_Gneu 6 years ago
Bob_Gneu
You were not insulted or torn down, you simply didn't do appropriate research before responding and it lead to a lop sided debate.
Posted by ReformedArsenal 6 years ago
ReformedArsenal
So, I take a topic outside of my typical field of expertise and I get insulted and torn down...

Thanks for being amicable and polite debaters...
Posted by Bob_Gneu 6 years ago
Bob_Gneu
It is a real travesty, seeing the quality of debates around here. It is almost as if being unable to understand the topic qualifies someone to be able to debate a topic. It is a shame indeed. =\
Posted by duckiejen23 6 years ago
duckiejen23
Rather than being an educated, insightful woman, I am referred to as a "bantering" man. A simple click on my profile would have remedied that situation. Clearly, appeals to emotion outweigh any semblance of logic; a classic consequence of a seminary background.
Posted by Bob_Gneu 6 years ago
Bob_Gneu
Con failed to address the topic as Pro supplied and instead went into his views on the matter of child pornography, and its nature.
6 votes have been placed for this debate. Showing 1 through 6 records.
Vote Placed by RougeFox 6 years ago
RougeFox
duckiejen23ReformedArsenalTied
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Reasons for voting decision: Pro used better sources and made more convincing arguments for two reasons. One, he used warrants to back up the specific claims. Two, con's definitions were all he provided in that regard and they did not gain him any ground.
Vote Placed by kohai 6 years ago
kohai
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Reasons for voting decision: con used better sources, but pro had better arguments
Vote Placed by Ore_Ele 6 years ago
Ore_Ele
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Reasons for voting decision: I think Con didn't understand what Pro was arguing. Pro was saying that sexting currently falls under child pornography, but that it shouldn't. Con just kept arguing that it falls under child pornography laws, but he didn't make any case of why they should remain under that category. Pro's use of sourcesgreatly out did Con's, as Con only used definitions, while Pro brought in past court cases.
Vote Placed by KRFournier 6 years ago
KRFournier
duckiejen23ReformedArsenalTied
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Reasons for voting decision: I thought Pro hid behind the artistic value quality of the Miller Standard, asserting the Con had BOP. Granted, in a court case, this would be true, but this is a debate and Pro didn't offer me a reason why I should accept sexting as artistic. At some point, we must draw a line, and I had hopes the debaters would try to convince me of that line. Neither side convinced me. Sources to Pro and Conduct to Con (for what I consider to be a shift in BOP).
Vote Placed by darkkermit 6 years ago
darkkermit
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Reasons for voting decision: Good job from both sides. I give this win to PRO since his analysis of child pornography law, using statues and previous court ruling gives PRO the victory. CON uses analogies and examples that might seem convincing, but fail if one goes into legal depth of the reason child pornography is illegal.
Vote Placed by m93samman 6 years ago
m93samman
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Reasons for voting decision: Con had zero sources besides for the definitions. His arguments immediately lose credibility if Pro provides numerous sources to support his position. 5 points