By Dipti Ramnarain ’10
Staff Writer

Pornographic images of children have increased by 1,500 percent since 1998, a startling statistic presented during a panel discussion at the Law School on Tuesday.

The event, entitled “Self-Produced Child Pornography: The Appropriate Societal Response to Juvenile Self-Sexual Exploitation,” assembled three noted legal scholars for a discussion in Caplin Pavilion. It was sponsored by the Virginia Journal of Social Policy and the Law.

“Today’s problem is tomorrow’s epidemic,” warned Professor Mary Leary of Catholic University, pointing to the importance of addressing the growing threat of child pornography.

Also participating in the talk were UVA Law Professors Anne Coughlin and Stephen Smith ’92.

The problem of child pornography is widespread and touches many areas of legal practice and policy, including criminal law, international law, social policy, and the interface of technology and the law. However, the presentation was limited to a very specific area within child pornography, an area involving teens who, without coercion, distribute pornographic pictures they have produced themselves.

Yet even with this limited definition, each professor had a different opinion on the topic.

Leary pointed out that judges are just starting to deal with this problem, and self-produced child pornography is not uniformly prosecuted. Often, outside pressures such as the media can influence how these cases are handled. Her paper asks what the appropriate societal response to this activity is. Should we view this problem as a social problem, a legal problem or both?

The U.S. has a progressive stance on child pornography and understands that the social harms caused go beyond the child and the images. But in the case of self-produced child pornography, should that concept of juvenile prosecution apply? Leary explained that keeping prosecution as a possibility for these minors is important, as long as important caveats such as youth and crime-specific factors are taken into consideration and there is no mandatory prosecution. She believes that it is the duty and responsibility of the government to intervene in the continued sexual objectification and eroticization of children, even if self-produced, in the rehabilitative settings of the juvenile justice system.

Professor Smith started by pointing out that self-produced child pornography was a highly empirical problem and reminded the audience that the ultimate goal was to protect children. Where he differed was a question of means, or how to solve this problem. Smith explained that the role for criminal law should not include arresting and prosecuting these minors, but should be limited to rehabilitation. Smith believes that the children involved need help and compassion, and society needs to respond justly and ask whether punishment will help or hurt these children.

A larger question posed by Smith was why kids would behave in this manner. He pointed to the simple fact that we live in a sexualized society where teenagers have sex. The median age of the first sexual experience is 16 for boys, 17 for girls. Smith explained that the criminal justice system should be used as a last resort and as a therapeutic intervention, not as a punishment for children. He ended by considering the roles for parents, and their negligence, on this problem.

The formal part of the panel discussion ended with Professor Coughlin. Taking the stance furthest from Leary, Coughlin asked the audience to keep in mind two things.

First, the category of what counts as child abuse is culturally and historically contingent. Previously, topics such as masturbation, which are today considered harmless, were labeled as self-abuse and considered a serious problem.

Second, we must be cautious in the language we choose to discuss the problem. Coughlin pointed to the conflation between child pornography in general and self-produced sexual imagery of children, and the use of coloring terms such as “a devastating plague” and “an epidemic.” This rhetoric, she believes, obscures more than it clarifies.

Questioning the very assumption of Professor Leary’s argument, Professor Coughlin asked, what is the harm here exactly? She believes it is the creation and dissemination of the image. The underlying sex acts are between consenting minors and are not themselves illegal. Before we decide to criminalize, Coughlin argued, we must identify the additional harms created by the image. It is not enough to point to the harms created by other forms of child porn. Rather, we must specify what the harm is and who the victims are when consenting minors make images of and for themselves.

She reminded the audience that American culture objectifies everybody, including children, who often receive mixed signals about the acceptability of their sexuality. Acknowledging that this is a serious social problem, Coughlin concluded that the criminal justice system was not an appropriate fix. She also reminded the audience that when it came to prosecuting sexual behavior, it would probably be the most marginalized and alternative sexualities that prosecutors would go after first, leading to the possibility of discrimination.