The Senate Judiciary Committee is considering an amendment1 to the current federal child pornography law2 that would give prosecutors the ability to charge minors for voluntarily creating or sending sexually explicit material featuring the minors themselves. The bill was spurred by a recent Fourth Circuit decision reversing a federal conviction of a nineteen-year-old who had explicit photographs of a seven-year-old child he had been abusing.3The defendant had been convicted of engaging in sexual conduct with a minor for the purposes of producing a visual depiction of that conduct, but the Fourth Circuit reversed because the prosecution had failed to adequately show proof that the purpose of the abuse was creating the photographs.4 H.R. 1761 is meant to respond to this decision by removing the purpose element, and simply criminalizing the creation of sexually explicit material featuring minors.5
Representative Jackson Lee (D-TX) proposed carving out an exception to H.R. 1761’s mandatory minimums for underage consensual offenders, but this was rejected.6 Representative Jackson Lee stated that she was concerned the law would be used to prosecute teenagers taking pictures of themselves, leading to inordinately severe penalties such as sex offender registration and long prison sentences.7 She expressed concerns regarding over-zealous prosecution in light of Attorney General Sessions’ memorandum discouraging prosecutors from exercising discretion.8
In response to Jackson Lee’s proposal, Representative Mike Johnson (R-LA) argued that “prosecutorial discretion has been a sufficient barrier” to juveniles being federally prosecuted under child pornography laws, essentially rebuking his colleague as unnecessarily alarmist.9
But at the state level, juveniles are in fact charged with sending sexually explicit photographs or videos of themselves, albeit uncommonly. While the prevalence of “sexting” is difficult to measure, in one 2015 study more than fifty percent of the participants reported having sexted as teenagers.10 A more recent study found that twelve percent of the twelve- to seventeen-year-old students surveyed reported having sent explicit images of themselves.11 Prosecuting all these teenagers is clearly not feasible, but law enforcement agencies have reported making arrests in eighteen percent of the child pornography cases involving only youth without additional criminal or abusive factors.12 In one instance, a sixteen-year-old girl was prosecuted for producing child pornography after she told law enforcement officials that she was worried that her seventeen year old ex-boyfriend would disseminate explicit photographs that they had created together.13 Citing the state’s need to protect the girl from her “own lack of judgment” and the “future damage [that] may be done to these minors’ careers or personal lives,” from disseminating the pictures, the Florida District Court of Appeals upheld the sixteen-year-old’s conviction for a serious sex crime.14
Commentators on state laws have noted that young people who are “nonwhite, low income, gay or transgender are disproportionately prosecuted for many crimes,” raising concerns regarding how criminal child pornography laws will be applied.15 Additionally, a family member or school official’s decision to involve law enforcement may be a reflection of biases regarding the acceptability of same-sex relationships.16 For example, a sixteen year old described her mother’s inability to accept that her daughter was in a gay relationship as the reason behind her mother’s decision take her daughter’s phone—which contained explicit images of the sixteen year old—to the police.17
H.R. 1761 gives federal law enforcement broad powers to prosecute minors for consensually producing explicit depictions of themselves under the assumption that prosecutorial discretion will prevent this outcome, but given the behavior of state actors, this assumption may be unwarranted.