Wednesday, February 10, 2010

Are we to take SB 1266 to be a sign of decency?

Schoolkids send naked cell-phone photos of themselves to each other. Given what is usually on one's mind--and what usually seems funny--at that age, does this come as a surprise to anyone?

What is surprising is the response. Bawdy jokes, (usually less-than-tasteful) drawings of sexual subjects, and "dirty" pictures passed around by schoolkids used to be the subject of adult scorn, at worst being confiscated, especially if the pictures are of a classmate, or resulting in issuance of a detention. Way, way back in the '90s this kind of silly, juvenile behavior was treated as just that. Nowadays, schoolteachers and parents of the "victims" want to get the law involved.

Under current Arizona law, sending of nude pictures of self or classmates by cell-phone or e-mail could be prosecuted as sexual exploitation of a minor, a class two felony. SB 1266 creates a new class 2 misdemeanor, "unlawful transmission or possession of explicit sexual material by a minor", to take the place of this. The title is a bit misleading; in addition to explicit sexual material, it also criminalizes the possession or transmission of photos of the genitalia, or of mere nude photos. As Alessandra Soler Meetze of ACLU-AZ remarked to the Arizona Republic, the bill criminalizes the digital equivalent of mooning.

From a certain perspective, SB 1266 looks like a stroke of decency from the legislature. "Let's not make the kids register as sex offenders; let's give them a slap on the wrist." However--Candy Andy Thomas's persecution prosecution for having a computer virus ultimate plea bargain with teenager Matt Bandy for passing around Playboy in school aside--Arizona prosecutors have been reluctant to charge teenagers with felonies for acting like kids due to the severity of the sanction.

Issuing Tasers to police made it more likely that they use force against suspects and detainees. Passage of SB 1266 will likely have the same effect of prosecutors. To quote the same Republic article:
Paul Ahler, executive director of the Arizona Prosecuting Attorneys' Advisory Council, said he didn't think any Arizona children have been charged with felonies for sexting under the current law.

However, children in other states have.

His organization, which includes representatives from the state's county attorneys, the state attorney general and municipal prosecutors, supports the bill.

Ahler said judges and law enforcement now are stuck with labeling a child a sex offender or finding some lesser charge that may not precisely fit the circumstances. In August, for example, Tucson police recommended a misdemeanor charge of using a telephone to offend, harass or intimidate for two 13-year-old boys suspected of sexting.

"Arizona prosecutors do not want to deal with this issue using child-pornography laws," Ahler said. "These are not pedophiles, not sex offenders. But they are doing something dangerous that needs to be stopped."

Susan Crawford with the Pinal County Attorney's Office said the current law has made officials reluctant to prosecute sexting at all.

She said the proposed legislation would show minors that sexting is serious, while at the same time allow for a more appropriate level of sentencing.

Since when is sending nude pictures dangerous?--and since when was the (cash-strapped) State of Arizona supposed to show kids that Behavior X is "serious". What does "X is serious" mean, anyway? "You'll get in trouble for it" or "It's harmful to nonconsenting parties?"

Southern Arizonans take note of the bill sponsor: Sen. Paton. The re-election of Gabby Giffords is looking better each week.

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