Judge Blocks Charges In Pennsylvania Sexting Case

from the where's-the-porn? dept

Tue, Mar 31st 2009 10:17am — Carlo Longino

We've had a tremendous response in the comments to our previous posts regarding the "sexting" case in Pennsylvania, where a local prosecutor had threatened to bring child porn charges against some girls who'd taken some photos of themselves, topless and in underwear, and sent them to some boys. Last week, three of the girls sued the prosecutor with the help of the ACLU, and a federal judge has put a temporary restraining order on the prosecutor, preventing him from filing charges, while the lawsuit proceeds. While not making any sort of final, binding judgment, the judge said that the girls' contention that the photos -- which reportedly show the two girls in their bras, and one topless with a towel around her waist -- "do not appear to qualify in any way as depictions of prohibited sexual acts" was a reasonable one. That's potentially a big distinction: there's been a persistent line of argument in the comments on the earlier posts that child pornography laws don't allow any wiggle room, no matter how young the producer, or if they're taking pictures or videos of themselves. But if the images in question aren't even considered pornographic under the law, it would certainly appear that the prosecutor doesn't have much to stand on.

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Filed Under: pennsylvania, sexting

59 Comments

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Anonymous Coward, 31 Mar 2009 @ 10:32am

Thank You Judge
I hope he makes the right decision at the conclusion of the suit as well
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12o, 31 Mar 2009 @ 10:32am

This is going to be a tough subject. Not sure of the outcome, but what I can see might be under 18 teens taking more pictures of themselves, then younger teens wanting to be like the older teens and in the 'in' crowd. Pictures getting posted to the internet, and soon a huge influx of child pornography, and sexual predators getting more access to the illegal material, all in the name of 'self expression' of the teenagers.

What does the ACLU want? Child porn that's now legal because underage girls wanted to 'express themselves' and consented to doing it?

Is this a valid argument to anyone else?
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12o, 31 Mar 2009 @ 10:34am

Addition: Don't get me wrong. I don't think prosecuting the girls is the answer, either. They need to be taught as to why it's wrong to do it. Parents should be doing that, or perhaps have a class they need to go to. But not prosecute them like a hardened sexual predator or something.
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Gunnar, 31 Mar 2009 @ 10:42am

We just had a 'sexting' case brought last week. But our DAs are reasonable. Those taking or distributing the photos have their phones taken and are referred to a Youth Aid Panel. After completing that program, their records are cleared. Kids who have the pictures but don't forward them only get their phones taken away.

They even went easy on the 18-year-old (I assume he was a classmate) who had the pictures:

"We're trying to come up with new and innovative ways of dealing with him so we don't jam him up with a felony. Otherwise, he'd be going to jail."

The story:

http://yorkdispatch.inyork.com/yd/search/ci_12010514

The DA's policy:

http://yorkdispatch.inyork.com/yd/search/ci_12010513
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R. Miles, 31 Mar 2009 @ 10:51am

Re:
They need to be taught as to why it's wrong to do it.
Why is it wrong? From the moment girls are born, they're taught they are nothing more than sex objects. Given how sex is treated in this country, there's a reason the porn industry makes billions per year.

Maybe, just maybe, if we quit treating the nude body as an offensive sight, these girls wouldn't have reason to sell themselves in this manner.

The prosecutor in this case is just jealous his wife doesn't do photos for him.
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Matt Bennett, 31 Mar 2009 @ 10:52am

What a jackass.
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Ima Fish, 31 Mar 2009 @ 11:03am

Somehow I get the impression that if a 45 year old male neighbor had taken and distributed the exact same pictures, the ruling would have been different.

However, overall it's a good ruling because, as the laws are currently written, there's no accounting for modern technology and the current use of it. To put it another way, the intent and purpose of those laws never contemplated teens taking pictures of themselves with phones.
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Anonymous Coward, 31 Mar 2009 @ 11:05am

Re: Re:
Spoken like a true pedophile...
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DS, 31 Mar 2009 @ 11:06am

Re:
Yes, that's specifically what they want.

Or how about, someone is allowed to take a picture of themselves in the nude.

Or is 'thought crime' valid to you?
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Anonymous Coward, 31 Mar 2009 @ 11:06am

Re: Re: Re:
Spoken like a true reactionary.
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DS, 31 Mar 2009 @ 11:07am

This thread is useless without pics.
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Chronno S. Trigger, 31 Mar 2009 @ 11:15am

Re: Re: Re:
And thus we have the true problem.

Anyone who defends this must be a pedophile. Anyone who points out that the laws are stupid and so are our standards must be a pedophile. Anyone who says that women should be allowed the same rights to go around topless must be a pervert/rapist.

This is not an us against them argument. There are people out there who will look upon this as an opportunity to to be sick, but those people are few and far between (and can get their content from other places anyways). Just because there is a 1 in 700,000 chance doesn't mean that everyone should have to be persecuted to "protect the children" or that rights should be trampled upon.
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Haywood, 31 Mar 2009 @ 11:25am

Re: Re: Re: Re:
Agreed, there needs to be a line in the sand, more about content than age. Topless doesn't = porn in my book, that would require a sexual act.
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Your Gawd and Master, 31 Mar 2009 @ 11:28am

Re:
Why treat it as a crime at all? Afterall, it wasn't a crime to begin with.
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Anonymous Coward, 31 Mar 2009 @ 11:33am

Re:
dude kids do stupid stuff get used to it.
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Anonymous Coward, 31 Mar 2009 @ 11:33am

Children rebel all the time, and with sex and nudity such a no-no kids are going to rebel with sex and nudity. Child pornography laws should not be applied to this. Parents should be told and parents take appropriate action. Why clog the court system with rebelling children that aren't causing harm to people.
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Your Gawd and Master, 31 Mar 2009 @ 11:37am

Re:
You need to start understanding the definitions of "child porn" since you don't seem to have a good grasp on the LEGAL definitions. You have a grasp on the emotional side of it but thankfully emotions aren't laws...mostly cause I feel your type of stupidity in manners such as these should be punishable by death so you're getting off easy here. *snicker*

Those definitions keep many an innocent parent from going to jail for the rest of their lives for taking pics of their children while they happen to be nude. They also prevent witch hunts, like you are proposing, over other mostly innocent(if not somewhat stupid) activities.

Yeah, yeah, yeah...I'm obviously a pedophile because I disagree and question. I'm also obviously a terr'rist because I don't have one of those stupid magnetic ribbons on my car, oh and I believe in animal abuse because I eat meat.
*end sarcasm*
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Your Gawd and Master, 31 Mar 2009 @ 11:40am

Re:
That's brilliant!! Reason...in the system!?!? Holy shit, who dreamed that one up?
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Your Gawd and Master, 31 Mar 2009 @ 11:41am

Re:
go back to fark.
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josh, 31 Mar 2009 @ 11:50am

Morality
We teach that right and wrong are subjective, we pretend that morals are culturally relative, and then we expect our teenagers to know the difference between right and wrong?

Or for that matter require every business major to take a philosophy class and drill moral relativism into their heads and then get pissed when they don't behave morally but instead run the world's economy into the ground.

Right and wrong exist. They are real. They matter.
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Chooby, 31 Mar 2009 @ 11:50am

The girls should be prosecuted. Nude photos of children is child pornography, period. If we show them that the law isn't going to apply to them, what will keep them from doing it again?
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RD, 31 Mar 2009 @ 11:57am

REALLY??
"The girls should be prosecuted. Nude photos of children is child pornography, period. If we show them that the law isn't going to apply to them, what will keep them from doing it again?"

I sincerely hope this is sarcasm. Because if you are serious, then you are seriously deluded and have a screwed up value system.

ANY nude pic of a child is porn? REALLY? So, take a pic of your newborn baby in the tub, and you are a child pornographer? REALLY?? Maybe you want to take another pass at that idea, as it would criminalize virtually every parent on the planet.
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Bradley, 31 Mar 2009 @ 11:57am

Re:
@Chooby

That's part of the problem. Nude photos of children isn't always child pornography, as stated by the very laws that define child porn. The law states that mere nudity isn't enough, that it has to portray some sort of sexual act - whether it's an outright action or a very provocative pose. The judge is ruling that them in bras and panties (and one apparently topless with just a towel) are not falling under that sexual act clause. The bra and panties I agree with - not much difference between that an lingerie modeling and/or wearing a bikini (well, depending upon the bra/panties in question). The topless one is more difficult without more of a description of the picture (no, I'm NOT going to ask to see it) - but without knowing any more first hand I'd be inclined to side with the judge in this as well, simply because I don't know any details.
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Some IT Guy, 31 Mar 2009 @ 11:58am

This is a weird one...
So say two teenagers are dating, they are both 17 and one is just a few days older then the other. If they were to take and send nude photos of each-other the day before the oldest turns 18, would the older one be charged for having child pornography on his/her birthday?
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Some IT Guy, 31 Mar 2009 @ 12:02pm

in York?
Wow I didn't realize it was in my home town....I figured it was in California or something!
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Chronno S. Trigger, 31 Mar 2009 @ 12:03pm

Re:
"what will keep them from doing it again?"

Time. Once they turn 18 it's kinda hard to take photos of their under 18 selves.

(sorry, had to say it)
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Anonymous Coward, 31 Mar 2009 @ 12:10pm

Re: Morality
Sorry, all I heard was:

blah blah blah I'm a judgmental dick that can count his IQ on one hand blah blah blah
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Azuravian, 31 Mar 2009 @ 12:17pm

Re: This is a weird one...
Actually, this happened a while back. Don't remember where, and they were actually both underage. However, they were charged with not only producing but distributing child porn because she emailed the file to him after taking the pic with her phone.

I just don't understand the purpose of a child porn law whereby the child can be both the victim and the predator.
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Anonymous Coward, 31 Mar 2009 @ 12:25pm

Re:
But that would be the parents' problem. We cannot, or at least should not, raise kids through legislation. Leave the parenting to the parents.
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Mechwarrior, 31 Mar 2009 @ 12:25pm

Re:
If nude images are pornography, then Eyes Wide Shut should have been banned from theaters (though that would prevent people from being assaulted by a poorly developed movie).

There is a most definitive difference between nudity and pornography. Its called sexual acts. Thats what seperates Playboy from Bangbus.
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Johnny Canada, 31 Mar 2009 @ 12:31pm

So all nude children are pOrn
So what is the statue of David ???

Or all the cherbs is the old Masters paintings?
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R. Miles, 31 Mar 2009 @ 12:51pm

Re: Re: Re:
No, a true pedophile would find the girls too old, thus, they can't be taken advantage of.

Your remark is more of ignorance than knowledge. For you seem to be under the impression you can control someone's acts.

Good luck with that. You'd be the first to ever do it. Because I can assure you, topless photos is mild compared to other acts they can be doing.

Or should your daughter start calling you "granpappy" now?
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Anonymous Coward, 31 Mar 2009 @ 12:54pm

Re: Morality
"we pretend that morals are culturally relative"

That's an interesting little universe you have constructed for yourself there!

Please, keep it away from everyone else.
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Rhandom, 31 Mar 2009 @ 12:57pm

Re: 12o's comment
"...but what I can see might be under 18 teens taking more pictures of themselves, then younger teens wanting to be like the older teens and in the 'in' crowd. Pictures getting posted to the internet, and soon a huge influx of child pornography, and sexual predators getting more access to the illegal material, all in the name of 'self expression' of the teenagers." Honestly, that is not likely. What happens more often, is that the more forbidden something is, without it being explained in a way that is understood by the listener, and appears to have a valid reason for being forbidden, the more it will occur. Teens have been taking naked photos of themselves for years - the difference is that now, there is the potential for them to be spread online. Simply telling a child or teen not to do something - generally seems to work only up until around puberty. After that, you need to actually sit down and explain the rationale. Saying "it is illegal" or "it is wrong to do" or "good girls don't do that" -- aren't strong for convincing majority. Actually sitting down and speaking with them about body image, self-expression, the risks of files ending up much farther distributed than intended, the potential liability to their future career, difficulties it may cause their family in terms of discomfort were those who know the family to find out - possibly something like asking them to consider the question "would you be comfortable if your [teacher, minister, friend's mom, doctor, grandmother, friend's younger sibling, your younger or older sibling, etc] ended up seeing the images unintentionally?" in terms of having them consider the implications of how freely information/images can end up distributed past the intended recipient - even by something as simple as a friend using a friend's phone, seeing the images on it when browsing for another file or something, forwarding it to themselves, etc, -- or quite simply, the recipient forwarding it along themselves to their friends or posting it on the net for kicks.
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DCX2, 31 Mar 2009 @ 12:58pm

Re:
I'm so sick of this myth that naked pictures cause problems. The shame associated with nudity (and even sex) says more about those viewing the picture than those who are in it.

Seriously, has anyone ever known someone whose life was ruined because of a naked picture?

Anyone?

The shame that our society attaches to nudity and sex is an attempt at prohibition. By making it taboo, it becomes enticing. Just like with alcohol, drugs, and prostitution, this forces it underground. "Everyone does it, but no one talks about it" kinda thing.

If it weren't for that prosecutor, none of you would have ever known anything about this. Isn't it ironic that the response taken to teach these kids about "potentially permanent burdens" has done more to create those exact burdens than the act itself would have?

When will we learn that over-protecting our children is hurting them by stunting their social growth? When they turn 18 and go off to college, an over-protected teenager will not be equipped with the proper skills necessary to navigate a world full of people who want to take advantage of them.

As for the fear that there will be an explosion of new child porn if it's legal for minors to take pictures of themselves...further application of this logic leads to support for banning bullets because their existence leads to an "explosion" of homicides involving guns.

Also, consider that teenagers are already doing this, and in a quantity deserving of its own slang description.
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Anonymous Coward, 31 Mar 2009 @ 2:09pm

Re: Re:
Just arrest all makers of video and still picture equipment then those evil contraptions will never get in the hands of a teen who might take pictures that others will look at. Pictures = indecent
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Anonymous Coward, 31 Mar 2009 @ 2:13pm

What kind of moron suggests that a child taking nude pictures of themselves should go to prison?

Please explain how it will make society a better and safer place for ANYONE to have a teenager tagged as a sex offender, and put in prison at taxpayer expense, followed by the stigma of a felony conviction and register as sex offenders?

I have a hard time seeing how an individual taking photos of themselves, in ANY pose can present a credible threat to others such that it would justify felony sex offender charges.

Perhaps there's a better way of handling the situation?

At least the kids are facing state charges instead of federal, the situation could be MUCH worse.
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L.W., 31 Mar 2009 @ 2:13pm

Re:
Parents can't do anything about it anymore, we gave up control of our kids when we started letting the government tell us what we can and can't do in the corrections department. We are even letting them tell us "you're child needs to be on this kind of medication, or they can't go to school".
To me it is kind of like the Salem witch trials, if we say the wrong thing to our kids, they whisper abuse and ""poof"" everyone comes after us. So until the government lets US DECIDE what is best for our kids. Then the " Show me yours and I'll show you mine ", game will be world wide..
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L.W., 31 Mar 2009 @ 2:29pm

Re: Re: Morality
HEY ANONYMOUS COWARD :
Do the letters F O mean anything to you?
I put in letters so you could read it , instead of "hear" it. (blah blah).
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Anonymous Coward, 31 Mar 2009 @ 2:44pm

Not being an American or even a lawyer I can't claim to have any familiarity with the child pornography laws in question. However, it was my belief that purpose of such laws was to protect children from sexual abuse.

Using these basic guidelines, I fail to see how one can possibly attempt to prosecute the person that is supposed to be the victim and why there is even a debate about it.
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Rose M. Welch, 31 Mar 2009 @ 3:24pm

Re: REALLY??
ANY nude pic of a child is porn? REALLY? So, take a pic of your newborn baby in the tub, and you are a child pornographer? REALLY??

If you are developing photos at Wal-Mart, yes.

Which I found out last year, much to my surprise. Although they *did* apparently develop photos of Jamie Lynn Spears' tits (http://www.ibtimes.com/articles/20080923/wal-mart-stole-jamie-lynn-spears-breast-feeding-pics.htm), which seems much worse than my infant's butt on the nudity scale, roflmao.

(Although I don't think any kind of skin is pron. When I think of pron, I think of sex acts.)
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Jack Sombra, 31 Mar 2009 @ 3:30pm

"However, it was my belief that purpose of such laws was to protect children from sexual abuse."
They were, but as most laws the problem is as time goes along the motivation/reasoning/logic behind the law (or the exceptions to a law) vanish's and all that is left the actual "letter of the law", which can be twisted and used by whom ever it suits

Child pornography laws these days only care about the actual child pornography, they don't give a damn about the children
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Anonymous Coward, 31 Mar 2009 @ 4:53pm

Re: Re: Morality
He is right though. There are certain things that are right and certain things that are wrong. Period. Just because a particular culture, law, or people do not recognize that doesn't make it untrue. People just want to make a bunch of 'gray areas' so they don't have to face the reality of their own actions. No one wants to be responsible for anything anymore, and instead live in their own little fantasy world. Or, more appropriately, they want someone else to be responsible.
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Anonymous Coward, 31 Mar 2009 @ 5:01pm

Re:
Right so if a parent takes a photo of her topless two year old at the beach, that's child pornography and we should lock up the mother?

What about a pediatrician who sees a child nude? Shouldn't actually seeing the child nude in person be far worse that possessing a simple photo?! What about a parent who washes her child's genital area? Sexual abuse!! Don't get me started on baby wipes!

Or, may context matters. Maybe, just a bit.
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Anonymous Coward, 31 Mar 2009 @ 5:13pm

Re:
That's what I've always wondered about making child porn illegal. The goal is to protect the children. But by the time some sicko is looking at child porn, the harm has already been done. The kid has already been abused. Looking at the photos afterward doesn't perpetuate further harm against that child (no matter who is doing the looking). Whoever is abusing the child would abuse them (or continue to) regardless of whether or not they can record the abuse. So what does making the photos illegal really accomplish?

In fact, most times the images serve as the only way to catch the abuser and stop the abuse. Otherwise it would only continue in secret. So, in reality, child porn likely helps prevent abuse, more than it will ever cause abuse.
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Anonymous Coward, 31 Mar 2009 @ 5:14pm

Re: Re: Morality
Find an uncomfortable truth, there? Morals, our sense of right and wrong, are entirely a cultural device. Things that we consider unconscionable might be totally acceptable somewhere else and vice versa.
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Anonymous Coward, 31 Mar 2009 @ 5:49pm

Easy fix
All of this arguing is pointless. It can all be put to rest easily and with one simple answer.

"World Nudity". Get rid of all clothes (except for bedsheets for those who we don't need to see naked) and no more problem. Make everyone nude, and no more argument.

In fact, I'll start now...
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Anonymous Coward, 31 Mar 2009 @ 8:48pm

Re: Re: Re: Morality
So what you're saying is that the holocaust was perfectly acceptable because the Nazi party believed it was right. Yes I see how you could believe that... but I disagree as does most of the world (hint: world war).

The fact is that moral right and wrong are not universally accepted, but that does not make 'wrong' any less wrong. A culture can consider wrong acts to be conscionable to them, and believe they are not doing wrong acts, while they are in fact doing wrong acts.

Now, if you reject that any God or supreme being exists, then you must come to the conclusion that no universal or absolute right and wrong could exist. This is where you are arriving at the wrong conclusion... that right and wrong are not absolute, by starting at a wrong premise.
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ryan, 31 Mar 2009 @ 11:32pm

Re: Re: Re: Re: Morality
No, I think what they are trying to point out is that while you can point to specific instances and get a wide consensus that they are 'wrong' or 'right', it is just that - specific to a set of circumstances and still only a consensus.

The holocaust example is a pretty drastic one, but also VERY specific. So let's go to killing another person. Clearly there are instances where it is necessary (self-defense, war, protection of others), so it is not a universal 'wrong.' Maybe you could claim that killing an innocent person is wrong, but that is still subject to investigation of every possible circumstance. "No killing innocents," is an oft-used cry of those against abortion. Even putting aside qualms about when the fetus is a person, what if that innocent fetus/being/unborn baby will kill the mother if allowed to remain? Should the mother really be allowed to die to save the "innocent"?

I know, abortion is just as drastic and as heated of an issue as the holocaust can be, but the point is that I (and others it seems) think you would be hard pressed to make a blanket statement of 'right' or 'wrong' that holds.

Further, IF a "god or supreme being" exists, and IF "universal or absolute right and wrong" exist, that still does not say that you or I could grasp, understand, or know what they are as we are beings drowning in subjectivity.

Cheers.
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Eldakka, 1 Apr 2009 @ 12:19am

Re: Re:

Looking at the photos afterward doesn't perpetuate further harm against that child

Sorta yes, sorta no.
The further dissemination of the photos does.
For example, if a 10 year old is abused and the photos are distributed, do you not consider it as still harmful that, when 20 years old, they apply for a job and someone pulls out these photos of them? That would cause great emotional harm. Or perhaps someone in public office gets confronted with pictures of them being abused when they were a child, this could destroy a career. It would be emotionally shattering for that person.
From memory, it may have even been an article here that referenced it, I beleive the argument goes along the lines that as humans are 'intelligent' beings, with an inherent sense of self-worth and the other baggage that comes along with being human/intelligent, the continuing existence of these pictures can cause future harm (albeit not physical).
While I am, in general, in disagreement with laws that legislate emotional matters, making hurting someone emotionally illegal, in the context of childporn, which the production of is in itself an illegal act, I do accept the arguments about future harm, emotional harm, on the victims.
However, in these cases of teenagers creating their own images, as they are both the 'perpetrator' and 'victim' (if you really consider them a victim of their own actions...I don't), I don't really think the continuing future harm is relevant, as they were not 'abused' by anyone in the production of the pictures.
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Azrael, 1 Apr 2009 @ 2:24am

Re: Re: Re: Re: Morality
Remember: good, wrong, moral, imoral are nothing more than concepts based on the society around you, they're not absolute; The FACT that your god doesn't exist has nothing to do with that.
BTW the truth and morals are enforced by the winner; if the nazis would have won the war the so called holocaust would have been relegated to it's correct footnote in history as just another pest control operation.
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Frank, 1 Apr 2009 @ 2:25am

Re: 12o's comment
" . . .and sexual predators getting more access to the illegal material"
First of all it's not illegal material as described. Second, that's quite a leap you're making, that anyone over the age 18 (or whatever) who may be titillated viewing someone in a bra under 18 is ipso facto a "sexual predator." What's the fear, that the viewer is going to leap through his computer screen and assault the provocative pixels?
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DS, 1 Apr 2009 @ 3:56am

Re: Re:
wrong, try again dumbass.
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DS, 1 Apr 2009 @ 4:06am

Re: Re: Re: Re: Morality
"So what you're saying is that the holocaust was perfectly acceptable because the Nazi party believed it was right."

Wow, that was a pointless jump. As a human, I can disagree with the holocaust. As a member of a culture, I think it's morally wrong to suckle off of a government teat. Something that many people of my culture have no problems with. See how it works when we stop pretending that Hiter is the best example of any argument?

"The fact is that moral right and wrong are not universally accepted, but that does not make 'wrong' any less wrong."
It depends on your example of wrong. You may believe be wrong to you to snort mushrooms and have sex with your neighbor's wife, but is it our right to go to a tribe in Africa and make them change their ways so it alligns with your morals better?

"Now, if you reject that any God or supreme being exists, then you must come to the conclusion that no universal or absolute right and wrong could exist. "

Ahh, that's the crux of your arugment. Only with "god" can their be morals. Try thinking for yourself, and relize that just the sheer process of being a human means there's a sense of what's right and what's wrong. But really, you sound like an uninformed child when that's your argument. Because you are wrong at the very base. You might as well say that without god, you'll believe that the sky is blue, when god specifically said it's puce. That argument is just as valid.
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DS, 1 Apr 2009 @ 4:07am

Re:
So they should also be blinded lest they see themselves naked?
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DS, 1 Apr 2009 @ 4:09am

Re: Easy fix
Aaah! The Googles, they do nothing!
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Gene Cavanaugh, 1 Apr 2009 @ 4:45pm

Child porn
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Gene Cavanaugh, 1 Apr 2009 @ 4:49pm

Child porn
Interesting.
My wife and I paint, and we have sometimes (in our art class) discussed paintings of nudes, including some paintings of people who were rather young.
We have never considered hiring a model, preferring landscapes and floral arrangements, etc., but we would not in any way think we were doing anything wrong, and making the painting as realistic as a photo would be desirable.
But that would be "art", even with a fully nude person, even a fully nude young person!
Go figure! Is everyone crazy in this area?
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Definitally not a pedophile, 1 Nov 2009 @ 11:31am

Re: Re: Re: Re:
If i say that if you give a teenager a camera phone and this is what is bound to happen eventually and the kids, if not out of high school, should not be charged, does that make me a pedophile because, in some cases, i am someone who thinks our laws are stupid and so are our standards?
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