Authorities Concerned That Child Porn Defendants Seem to Be Getting Younger

April 26, 2010 by David S. Seltzer

As a Fort Lauderdale cyber crime criminal defense attorney, I was interested to see a recent article about a trend in child pornography prosecutions. According to an April 25 article in the San Jose Mercury-News, investigators were disturbed to notice that child pornography defendants are increasingly younger. In particular, law enforcement officers in the article cited an increase in cases of teenaged minors downloading or even creating child pornography. The article suggests that younger offenders might be more common because they are more comfortable with the Internet and technology, which has made it far easier to obtain child pornography despite strict bans on it.

The article quotes Matthew Van Dyke, investigator and group supervisor for U.S. Immigration and Customs Enforcement in the San Jose area. He says no statistics on the ages of child porn defendants are available, but his office started noticing minors and young adults consuming child pornography in 2005. Usually, these were teenagers using their parents’ email addresses. Van Dyke said it’s easy for teens to reach child porn simply by surfing for ordinary pornography, then following links until they find illegal child pornography. San Jose police detective Kendra Nunes added that some kids are making self-produced child porn by performing via webcam for an online audience. The officers said parents should pay close attention to what their kids are doing online.

I agree, but as a Miami-Dade cyber crime criminal defense lawyer, I very much hope that police agencies are treating these younger offenders in a way that takes their age into account. Here in Florida, we have laws that exclude teenagers from prosecution for statutory rape or inclusion on sex offender lists, if both partners consented and they were within a specific age range. In some cases of child pornography, I believe a similar approach is appropriate. In particular, I believe kids who make “self-produced child porn” shouldn’t be charged with making or distributing child pornography, because those laws are inappropriately harsh when there’s no exploitation and no real victim. I also wonder if it might not be age-appropriate for teenaged minors to look at naked pictures of other teenaged minors. And the use of a parent’s email address could get the parent into legal trouble, causing confusion and possibly a wrongful prosecution.

I don’t wish to play down the seriousness of child pornography crimes or the objectionable nature of some of the material mentioned in the article. No matter what your age, exploitation of young children is wrong. But some of the situations described by the law enforcement representatives in this article don’t exactly sound like exploitation. Kids looking at graphic images of kids their age may technically be illegal, but it doesn’t create the same power imbalance that adults exploiting children does. Nor do we usually give teenagers the same level of legal responsibility for their actions that we give adults. And as I have written here many times about “sexting,” it is logically and legally nonsensical to prosecute teenagers for taking sexual pictures of themselves. As a West Palm Beach cyber crime criminal defense attorney, I think doing that is a potentially dangerous mistake, but it’s a shame to ruin the lives of young people for making it.