In order to protect the children, we had to imprison them

In the context of the neo-puritan trial of Simon Walsh (description of case NSFW although text-only) for possessing ‘extreme pornography’ – in UK law, the simple ownership of photos of consenting adults doing kinky things to each other that could cause physical damage – civil liberties defender David Allen Green made the point that “the trial is about how the State can use the criminal law to regulate images of acts which are perfectly legal to perform”. Political philosopher Chris Bertram countered by making the (fair) point that “that’s already the case re ppl over the age of consent but under 18. So nothing new in that respect”.

I suggested to Chris that this nonetheless wasn’t a strong argument in the extreme pornography laws’ favour, because the laws he cites are also indefensible. He strongly disagreed with my claim that the laws were indefensible. We agreed to disagree on Twitter, which is a terrible location for such an argument – but I thought I’d set out here why I think the laws that universally criminalise the possession of indecent images of people over the age of consent but under the age of 18 are a terrible idea [fn1].

As far as I can see, there are three reasons why society has an interest in minimising the existence of indecent images of 16-17 year olds, while accepting that it is completely legitimate for them to have sex [fn2]. These three reasons need to be balanced against the starting point that it’s both illogical and cruel to ban people who we accept should be allowed to see each other naked and have sex with each other from owning naked/sexual pictures of each other [fn3].

  1. To prevent people under the age of majority from being exploited by creepy pornographers who offer them money for acts and pictures they will subsequently regret and will never be able to take back, despite never having had the legal capability to enter into such a contract.
  2. To prevent third parties or partners from photographing people without their consent (whether or not they distribute the pictures in principle, although the latter is obviously worse).
  3. To prevent incidents where photographs taken by the person or their partner get into the public domain (generally vengeful exes or boastful idiots).

Reason one is hard to argue with. There’s no reason why the capacity to give sexual consent should be equal in law with the capacity to enter a binding contract; prostitution involving under-18s is forbidden in most jurisdictions with harsh punishments applied to clients and pimps for exactly the same reason [fn4]. But it’s already largely solved: if a pornographer pays someone under 18 to have a sexual encounter for money, then they are guilty of child prostitution offences and everyone involved in the process gets jailed for a long time. So we’re left here with the problem of pornographers enticing 16-18s to pose for indecent pictures that don’t come within the scope of the existing prostitution law. Given the legal definitions we already have for the purposes of both obscenity and prostitution law, this would not be at all difficult to draft, with punishments just as severe as currently apply. So that part of the problem can easily solved without any conflict.

For reason two, I’m struggling to see why this point is any different whether you’re 16 or 25, or 33, or 100. If some scumbag takes indecent photos of you without your consent, that’s vile, and if they publish them, they’re an appalling person and you’ve been violated. The fact that a 16-year-old can’t consent in the sense being discussed is irrelevant, since nobody’s consenting to anything anyway. So whatever the appropriate legal solution to this problem may be, it isn’t the one at hand.

Reason three is superficially more tempting. Anyone who actually distributes the pictures in this context would be caught by the same law as the people in reason two, but there is a judgement-related argument that can be raised.

Kids are, in general, both more trusting and more likely to do stupid things than adults, and teenagers mostly go out with each other. So someone aged 16-17 is more likely to treat someone who is in fact a reason-two scumbag as a trusted partner; they are also more likely to be going out with someone who is pathetic enough to publish their private photos if things go awry. At this point, protecting kids from increased greater risk to themselves surely overrides your general right to send your lover a photo for them to wank off to when you’re away, right?

Well, no.

Criminalising things has a deterrent effect, sure, and that deterrent effect varies depending on the rationality of both the crime and the criminal. Famously, the death penalty is generally accepted to have little-to-no impact on murder rates, because very few murders are based on a rational calculation of the penalty if caught.

Murders tend to involve people with poor impulse control (whether generally or due to temporary factors) in situations that involve an intense emotional response. In these cases, deterrence is largely irrelevant: people do not act based on rational calculations. On the other hand, when talking about cases such as deliberate corporate fraud, stringent detection and heavy penalties do indeed have a strong deterrent effect, because they involve rational people making rational decisions.

RHETORICAL QUESTION ALERT: do mid-teenage relationships tend to fall into the category of “rational people making rational decisions”, or “people with poor impulse control in situations that involve an intense emotional response”?

Quite. So rather than creating a situation where kids are prevented from doing stupid things, we end up with a situation where kids continue to do stupid things to pretty much the same extent, but end up being arrested and gaining criminal records for them [fn5]. It would be a bit of a struggle to suggest that this makes anyone better off.

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[1] Yes, it’s because I want to defend nonces and WON’T THINK OF THE CHILDREN. Discussions of this kind of law tend to into that kind of territory; if that’s your bag, then this blog – along with any source of debate more sophisticated than the comments section of the Sun – is not for you. This is obviously and absolutely not aimed at Chris.

[2] Let’s take the second point as read for the purposes of this discussion; it’s the case both where I live and where I’m from. I know some Australian states and much of the USA set the age of consent at 18, which strikes me as daft for many of the same reasons discussed in this post, but at least consistent.

[3] The UK law in question has exemptions for people who are married or living together and de-facto married, but most people who are aged 16-17 and in fairly serious relationships do not fall within these exemptions.

[4] Prostitutes aged under 18 are also still arrested and charged in many jurisdictions, despite being the victims; the lawmakers, police and prosecutors responsible for this decision should be horsewhipped until they are dead.

[5] Or the law is never enforced, in which case what exactly is it supposed to be for again? If you want to send a message, use SMS not the courts.