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Opinion: Decent Exposure? 

Poli Psy

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I’ve been peeved all month about the latest panic: “sexting.” More and more states are bringing child-porn charges against teenagers who take racy pictures of themselves and send them electronically to lovers or pals. Child pornography is a far more serious crime — in terms of penalties, anyway — than is having actual sex. Sentences run to years per image, and after prison the person must register as a sex offender, a kind of life sentence in itself.

You might call sexting a dunderheaded act — who knows where your immortalized nipples might end up — but also a victimless “crime.” Yet here is the amazing part: Child-porn law is based on the minor’s inability to consent to being photographed; the model is ipso facto a victim of the photographer. Sexting, in which the model is also the photographer, is a crime in which a person can be both perpetrator and victim at the same time.

U.S. sex law is like a black hole: Once reason falls in, it can never re-emerge.

Can all this get any stupider? Just as I was asking myself this question, a post arrived from sex therapist Marty Klein’s blog, Sexual Intelligence, confirming that it could:

Massachusetts state representative Kathi-Anne Reinstein (D-Revere) has introduced a bill making it a crime for anyone over 60 to pose nude or sexually for a film or photo. The person taking the photo — whether a lover, artist or commercial porn maker — would also face jail time.

Adding insult to injury, the proposal amends a bill designed to punish those who make child pornography. It treats fully functional adults who happen to be over 60 the same as children under 18; it explicitly takes away their right to consent to be photographed in a lascivious way.

What Klein doesn’t mention is that the bill precludes consent not only by “an elder” but also by “a person with a disability.” Massachusetts law defines an elder as someone over 60; a “disability” is “a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection.” The bill is an obvious violation of the First Amendment, says Florida Constitutional lawyer Marc Randazzo, who notes that among the consent-stripped could be his own mother, whom he describes as a 60-plus sexually active “knockout” with a lung condition. Representative Reinstein, by the way, is 38.

We can hope this idea languishes in committee — and, if not, is ridiculed to death. Yet, once impassioned, Reinstein does not rest. Her 2006 proposal to honor the Fluffernutter as the state sandwich failed; it is back on this session’s calendar. Now that senior advocacy groups have informed her “elder exploitation and pornography is on the rise,” she told the Boston Herald, the necessity of her new bill is a “no-brainer.” This is an indisputable fact.

It is axiomatic that anything you want to outlaw is widespread, on the rise or both. Once reported, the proliferation of said pernicious activity will be re-reported until it becomes “fact,” with or without substantiation. Like elder porn, sexting is alleged to be widespread and increasing. Among many others, CBS News recently told its audience that “roughly 20 percent of teens admit to participating in ‘sexting,’ according to a nationwide survey by the National Campaign to Support Teen and Unplanned Pregnancy.” It called sexting “shockingly common.”

Is 20 percent shocking or common? Is the number even accurate? Journalist Debbie Nathan did what every reporter should: She checked the source. Turns out the datum was derived from a grand total of 653 survey respondents ages 13 to 19. These kids were among a randomly selected subgroup of a self-selected pool of 375,000 teens and young adults who have told a polling outfit called TRU that they’re willing to answer online surveys. Of the young people TRU sent questions regarding their electronic sex lives, 90 percent chose not to respond. But 653 teens were moved to disclose, and about one-fifth said they sent sexy self-portraits to lovers and friends.

Bill Albert, the Campaign’s chief program officer, defends the survey’s credibility but stresses that it “represents just one point in time. For all we know, the practice could be decreasing.” Yet sexting prosecutions are proliferating as fast as sexting is rumored to be. And by the time Reinstein’s bill reappears, granny porn will also be recognized as a serious public safety threat, warranting strong laws to combat it. Mark my word.

It is easy to make fun of the Keystone Komstocks who write and enforce vice laws. Yet this recent pair of virtue-rescue missions deserves serious attention because the same misguided principle lurks behind both efforts.

That is, anyone who displays her body in a sexual way cannot possibly be doing so on her own volition. Somebody somewhere must be coercing her to remove her clothes, dance around the pole or aim the camera and press “send.” That the disrober-aimer-sender is usually female only compounds the suspicion that she is not in possession of her own mind and body.

Nearly three decades ago, pro-sex feminists defeated two municipal ordinances enshrining the idea that pornography is violence against women. Adults generally have refused to be protected from self-exhibition for fun or profit. Voyeurism is also a popular entertainment: Commercial pornography, one of the enduring legacies of the sexual-liberation movement, is flourishing. Sexting, you might say, is a 21st-century offspring of both these phenomena. For better or worse, pornographic tropes, including the defining elements of exhibitionism and voyeurism, are part of the lingua franca of teen sexual self-expression. And the digital revolution has turned every girl, boy, woman, man or transperson into a potential pornographer.

These truths are evidently disturbing to America’s upholders of decency. Turning their attentions from adults to children, they’ve vastly expanded the universe of minors in need of supervision. Everywhere, the sexual age of consent has risen from 13 or 14 to 16 or 18. Clipped at the bottom, the age of sexual majority might now be shorn at the top — at 60 — and around the edges, where bodies and minds have differing abilities.

Older and disabled people have long been infantilized, and sexual neutering is part of it. They (or should I say we; I’m 56) are considered cute, weak and dim — also attributes of innocence, which is to say ignorance and incompetence. This condescension shows itself in various forms of discrimination, which has led to the designation of the disabled and people over 40 as “protected classes” — legal categories of people, such as racial or religious minorities, who may suffer discrimination based solely on who they are.

But legal protection often is distorted into legal protectionism. As in anti-sexting and elder-porn laws, that usually means protecting people from themselves.

“Never in my wildest dreams did I imagine a 16-year-old taking a semi-nude picture of herself and sending it to her 17-year-old boyfriend would be prosecuted under child-pornography laws,” Bill Albert told me. Neither, apparently, did Vermont’s legislators. They are now scrambling to carve out an exception to state child-porn laws that decriminalizes the consensual exchange of graphic images between people 13 to 18 years old.

Although skeptics are already worrying that “predators” will get in on the sexting game, I predict the amendment will pass. Vermont has been more lenient to juveniles than have other states. But at the same time, we can expect to see more sexual behaviors criminalized — and more classes of people protected from what might be their own desires. This year, in clauses regarding sex-crimes victims, the phrase “or a person with a mental illness or disability” has been inserted after “a child 13 years of age or under.” That could be a good thing, guarding people who really need it, and Vermont’s legal definition of mental disability is far narrower than Massachusetts’. But who will define the consent of the disabled? And what will we be shielded from next? Baby-boomer porn?

And then, what will the next legal do-over look like, as the state attempts to scrub its politically motivated, unnecessary and harmful sex-crimes laws of their unintended consequences?

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About The Author

Judith Levine

Judith Levine

Judith Levine is the author of four books, including Not Buying It: My Year Without Shopping and Harmful to Minors: The Perils of Protecting Children From Sex. Her column, "Poli Psy," appears biweekly in Seven Days.


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