copyright 2009, Jump Cut: A Review of Contemporary Media
Jump Cut
, No. 51, spring 2009

Documenting and denial:
discourses of sexual self-exploitation

by Leigh Goldstein

In December 2008, the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com published a report summarizing the findings of a survey they had commissioned on adolescents, twenty-somethings, technology and sexuality. Entitled, appropriately enough, “Sex and Tech,” the report and related articles were made available on each organization’s website, along with press releases highlighting some of the statistics that the survey of 1280 subjects had generated. The report was immediately followed by an Associated Press article citing its findings. The story was then picked up by several newspapers, online magazines, cable news programs, each calling particular attention to one statistic: twenty percent of teens overall (i.e., boys and girls) have “sent/posted nude or semi-nude pictures or video of themselves.”[1][open endnotes in new window]

Judging from the spate of articles that have followed since its publication, the “Sex and Tech” study seems to have lent statistical credence to a practice that legal scholars and some journalists have been addressing for the past few years.[2] Generally referred to as “sexting” or “self-produced child pornography,” this practice involves adolescents taking pictures of themselves naked or barely clothed or engaged in a sexual act and then posting the images online or texting or emailing them to friends. As the label “self-produced child pornography” indicates, the production, distribution and possession of these images is a criminal act if the subject photographed is under eighteen. Minors participating in this seemingly innocuous form of flirtatious or erotic exchange have been formally charged with production and distribution or possession of child pornography.

For example, in a 2004 Florida state case, a sixteen-year-old girl (A.H.) was adjudicated as a delinquent for taking pictures of herself having sex with her seventeen-year-old boyfriend and then emailing them from his computer to hers. And in 2002, in Seattle, Washington, August Anthony Vezzoni, then sixteen years old, was adjudicated as delinquent for showing nude photographs of a former girlfriend to friends at school. Or, to take a more recent example that has received much media attention, three teenage girls in Greensburg, Pennsylvania, were charged in January 2009 with producing and distributing child pornography for taking and then sending nude pictures of their own fourteen and fifteen year old bodies and then texting the images to their friends. Three boys (aged 16 and 17) who received the images were charged with possession of child pornography. In the last six years, similar charges have been brought against minors in Alabama, Connecticut, Denver, Florida, Georgia, New York, New Jersey, Michigan, Pennsylvania, Texas and Wisconsin.[3]

These cases, and the media coverage they receive, all attest to the fact that child pornography has become a crime in which minors are constructed as perpetrators as well as victims. This paradoxical stance towards minors, predicated on a construction of children as innocent and punishment of those who defile that construct, is propped up by complex argumentation on the part of judges and legal scholars as well as some equally convoluted thinking on the part of journalists. Before further engaging with both those forms of discourse and the ways in which they construct children, I would like to address the question of statistical research and the dearth of up to date studies on child pornography within U.S. academia.

The circulation of dubious statistics and conjectures regarding child pornography should be read as an inevitable consequence of the legal penalties for having any encounter with pornographic material featuring subjects who are minors. The very act of approaching persons under eighteen and asking them if they produce, possess, or distribute erotic material featuring themselves (or another minor) constitutes a crime. One’s standing as scholar or researcher makes no difference from a legal perspective. Ask a minor about naked photos and you are soliciting contraband and harassing a child.[4]

While the current legislation against child pornography is certainly a research hurdle, I want to make clear that its consequences extend beyond the fate of the minors who produce it or the scholars who would hope to study them. By criminalizing self-produced child pornography, our government has effectively censored minors’ right to record their sexualities or erotic identities. It is as though the existence of underage sex dealt a bad enough blow to our culture’s construction of childhood; the production of a visual record of such acts has been designated as beyond the pale, a social practice that must be eradicated.

In the past decade, social constructionist scholars such as Steven Angelides and Philip Jenkins have noted the changes that the discourse of child sexuality has undergone, arguing that we are still in the midst of a pendulum swing initiated by the child rights and sexual liberation movements of the 1970s.[5] Making a similar claim about the role of innocence in defining children and childhood, James Kincaid has argued that the child be understood as a cultural construct that is essentially an emptiness, void, or lack, a “species which is free of sexual feeling or response.”[6] According to Kincaid, children’s innocence is one that we (adults) insist upon all too emphatically. Of course, that’s not to say there’s an absence of talk on the subject of children and sex. Covering up what should be a deafening silence is the incessant chatter of adults. Having shushed the kids, we adults gleefully expound on what they must feel: duped, misguided, ultimately regretful of having exposed and/or exploited their bodies. Exploited object? Of course, it’s the part kids were born to play. But the role of subject when it comes to discourses of desire? That remains off limits.

The very terms “self-produced child pornography” and, to a less explicit degree “sexting,” reveal the ideological agenda that they further. In their analyses of the adolescent social practice of producing and sharing eroticized images, media and legal discourses work to uphold the child as innocence construct by establishing two primary villains:

To illuminate the role these concepts have in denying child sexuality or minors’ rights to sexual expression, I will engage with the legal discourse surrounding pornography made by minors, and then turn to the media construction of this phenomenon. Ultimately, I intend to demonstrate that initiatives motivated by a desire to protect are contributing to a social construction of childhood innocence that puts kids at risk.[7] That risk and those harms take various forms. By penalizing minors for documenting their sexual desires, we hold them up to a standard of conduct they had no say in determining. When they point to the fallacies of the innocence construction, through their self representations, we punish them, labeling them as pornographers, exploiters and felons.

In addition to the damage they inflict on individual producers, these discourses of sexual self-exploitation affect a wider segment of the population, if more indirectly. The silencing of minors’ sexual desires and subjectivity encourages children in general to be ashamed of and/or deny aspects of their identities. But along with the emotional damage this ultimately may result in for minors, the cycle of silencing, shaming, and reaffirmation of innocence leads to other societal issues. Due to our current legislation and recent legal history, it is virtually impossible to hear a child’s voice on the subject of sexuality. This disregard for the “youth perspective” would seem to be, on the surface, a curious position for a culture renowned for its veneration of newness, freshness, and youth to adopt. But perhaps this silencing is more complicit with the U.S. adoration of youth than would first appear to be the case. Building on the work of child sexuality scholars who have approached their topic from a social constructionist perspective, I intend to show that by denying minors a right to sexual self-expression, we contribute to children’s endangerment. By making a minor’s sexual body into what must not be seen and her voice into what cannot be heard, we have, as Kincaid has noted, made children into the ultimate objects of desire. In effect, we are fostering the very audience or “market,” that child pornography laws and legislation seek to eliminate.

Child pornography in legal terms

Child pornography has not always been designated as a sphere of sexually explicit material distinct from pornography in general. The creation of child pornography as a distinct category of erotic material, and the elaboration of a specific set of standards by which to judge images of children, dates back to the 1982 Supreme Court case New York v. Ferber. The decision concerned the constitutionality of a New York state law that prohibited the

“promot[ion] of a sexual performance of a child under the age of 16 by distributing material which depicts such a performance.”[8]

The court opinion upheld the constitutionality of the state statute and defined all child pornography as illegal, distinguishing it from adult pornography, which was only criminalized if it failed to pass obscenity standards established by Miller v. California (1973).[9]

Citing the language of Article 263 of the New York Penal Law, the court defined child pornography as “the use of a child in a sexual performance.” A “sexual performance” is in turn defined as

“any performance or part thereof which includes sexual conduct by a child less than sixteen years of age.”

And “sexual conduct” is then defined as

“actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.”

Finally, a “performance” is defined as “any play, motion picture, photograph or dance” or “any other visual representation exhibited before an audience.”[10]

In determining the constitutionality of excluding child pornography from the category of speech protected by the First Amendment, the Supreme Court cited the state’s “compelling” interest in “safeguarding the physical and psychological well-being of a minor.”[11] This argument rests on the notion that child pornography is the record of an abuse and that it is the responsibility of the government to intervene on behalf of the child, as the future of our society depends upon “the healthy, well-rounded growth of young people into full maturity as citizens.”[12] The court’s judgment is founded on an assumption that people under sixteen are automatically damaged in a “physical and psychological” sense if they engage in any of the acts specified as a form of sexual performance. I am highlighting this detail not necessarily to dispute the claim, but rather to point out that the censorship justification is made on the grounds of an assumption about children and sexuality. According to the language of the court’s decision, any form of sexual activity, whether it is consensual or coerced, is damaging for a person under sixteen.

As evidence for this claim, the court cites the original language in the New York statute, which described an increase in the production and circulation of material involving the “exploitation of children as subjects in sexual performances.”[13] It also refers to psychiatric research studies and texts published between 1978 and 1980, which link child pornography production with child molestation. Specifically, the court summarizes the research as claiming that

“sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults.”[14]

Regarding these studies, I think it is important to address the social context of when they were conducted and written. In his analysis of the construction of child sexual abuse as social problem, Philip Jenkins engages with different moments in U.S. twentieth century history and the ways in which the figure of the pedophile or child molester is constructed at different points in this history. While periods of panic alternate with eras in which the effects of incest or pedophilia are doubted or minimized, the ten-year interval between 1976 and 1986 is characterized by Jenkins as a time of almost national hysteria. In part due to feminist activism, which sought to present rape and domestic abuse as crimes of national proportion that deserved large-scale legislative measures, child sexual abuse in the mid-1970s became a topic of public outcry and national attention. Jenkins points out that while the increased number of individuals during this period who made public their personal experiences of abuse should not be disregarded, the media coverage of the topic magnified the prevalence of abuse beyond what was being documented in individual studies. Phenomena such as child sex rings, violent rape and serial murder of children and child pornography were constructed as problems that commonly occurred and that constituted an omnipresent threat to the safety of every U.S. child. It is therefore against this backdrop of widespread fear and inflated but widely circulated statistics that the research the Supreme Court decision draws from was conducted.[15]

Having formalized a particular construction of sexual activity as de facto harmful as far as children are concerned, New York v. Ferber became the foundation for subsequent legal decisions regarding minors and pornography. While court decisions and congressional acts in the past two decades on the subject of child pornography have been grounded in a similar ideological stance that constructs sexuality as dangerous and as a taboo realm from which children should be excluded, the focus of subsequent legislation has shifted from the site of production to that of distribution and consumption. Along with raising the federal age requirement for pornography subjects from sixteen to eighteen, child pornography laws in the wake of New York v. Ferber have mostly been concerned with the legal status of material labeled “virtual child porn.”[16]

Virtual child pornography refers to sexually explicit material that features performers who appear to be under eighteen, either because of their youthful appearance or because their images have been digitally manipulated. In New York v. Ferber this material was designated as legal, and in fact the use of young-looking adults was proposed as a viable alternative for child porn producers.[17] Given that the original justification for censorship in New York v. Ferber was the protection of children who were the (ostensibly exploited) participants in pornography featuring minors, a distinction between pornography featuring actual and virtual children is in keeping with the way in which the Ferber decision constructed child pornography as a threat.

However, beginning with the Child Pornography Prevention Act of 1996, the emphasis on child pornography as a social danger was shifted from the experience of the subjects to the construction of a market. Material featuring performers who only appear to be under eighteen has become a source of contention. That federal statute designated virtual child pornography as illegal, employing a form of reasoning that focused on the market, rather than the experience of the performers during the production. The statute justified designating another area of speech as outside the protection of the First Amendment by arguing for the effects of virtual child pornography on the market place. In effect, virtual child pornography was considered to be an encouragement to child pornography consumers. By providing this audience with material, virtual child porn enables the market to exist and, as an indirect consequence, increases the likelihood that actual children would be harmed by being enlisted to furnish other material for this entrenched audience. Because it shifted the threat from the site of production to the existence of a pedophiliac audience, the CPPA did not recognize any real distinction between pornography featuring actual or virtual minors. Both forms of pornography catered to the demands of a consumer that the act was geared towards eliminating.

The emphasis on distribution and consumption, rather than production, in evaluating the social threat posed by child pornography was briefly reversed in 2002 with the Supreme Court decision in Ashcroft v. Free Speech Coalition. The Court determined that the CPPA was unconstitutional, due to its vague and overly broad language. As a consequence of that case, virtual child pornography was again determined to be a form of speech protected by the First Amendment.

Following this decision, Congress passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (generally referred to as the “PROTECT Act”) in 2003. This act also centers on a distinction between the production of pornography and its distribution and consumption. While the PROTECT Act, in line with the Ashcroft v. Free Speech Coalition decision, recognizes the production of virtual child pornography as legal, the act designates the promotion and consumption of it as illegal, if the work is represented in the transaction as featuring actual minors. In other words, to knowingly solicit, promote or consume a work that has been labeled “child pornography” is illegal, even if the work that is being circulated does not feature actual minors. The PROTECT Act effectively renders the content of the film as beside the point – what matters is that a producer, distributor or consumer represented themselves as intending to engage in the promotion or consumption of material featuring the exploitation of actual minors. After being declared unconstitutional by a federal appellate court in Atlanta in 2006, the PROTECT Act was upheld as constitutional by the Supreme Court in May 2008, in United States v. Williams. As a consequence of this statute, and the Court’s decision, the prosecution of child pornography has again been shifted from the question of conditions for production to the terms under which a work is promoted and consumed.

As scholars such as Laura Kipnis have noted, laws such as the PROTECT Act are geared towards policing fantasies rather than acts. People who seek out sexual images of children are identified as criminals by our legal system, even if the material that they solicit and/or consume did not necessitate the actual enlistment of a child in a sexual performance. Just by asking for this material, and thereby indicating a desire to sexualize children, they are committing a criminal act. The attention paid to consumption in child pornography cases and legislation over the past two decades to some degree helps make comprehensible the more recent prosecution of minors who produce pornography. These cases can be referred to as “sexual self-exploitation” not because of any debate regarding the harm experienced by the subjects at the hands of the producers during the making of the material, but instead because of the possible threat the circulation or even existence of the material is perceived to pose to the subjects. As with the discussion of virtual child pornography, self-produced child pornography is constructed as dangerous because of the audience that it might find.

For example, in the 2007 Florida case, A.H. v. State, A.H. and her boyfriend were perceived as endangering themselves not only because they photographed themselves in sexually explicit poses, but also, and perhaps more crucially, because they emailed attachments of the photos to each other. The sharing of this material via email was what led to their drawing the attention of law enforcement, and the transmission was also the crux of the case that the government made for why their activities should be determined as illegal. By uploading and then sending the images via email, they were perceived to be putting themselves at risk, because child pornography consumers might be able to then access the images and potentially even pursue the two subjects. A.H. and her boyfriend were therefore guilty of contributing to and enabling the child pornography market and allowing themselves to be sexualized and perhaps even opening the door to a future molestation by one of their admirers.[18]

The argument for criminalizing self-produced child pornography depends upon a particular construction of an ever present and quasi-voracious pedophiliac audience. This predatory, if hypothetical, consumer is constructed as an adult and is pivotal in arguments against self-produced child pornography in that it allows those who advocate shielding minors from sexually explicit material to designate a figure of danger who is not the ostensibly innocent child. By displacing the threat of danger away from the producer onto an unspecified and unintended consumer, legal arguments buttressing the ban on self-produced child pornography avoid the contradictory position of explicitly vilifying those who they seek to protect.

With the shadowy figure of this malevolent, voyeuristic adult in place, the innocence of these sexually active teens can again be reaffirmed. Rather than self-possessed subjects of sexual desire, they become unthinking and naïve souls who have inadvertently exposed themselves to the dangerous and unpredictable desires of adults. They become, in other words, objects of a threat they lack the foresight to perceive, and this inability to protect themselves in turn serves as further evidence for the need for regulation and adult monitoring of their actions. Ultimately, legal arguments against self-produced child pornography participate in an effort to undue the agency minors demonstrate in their creation of the sexually explicit material in the first place.[19]

Media representations of self-produced child pornography

In court decisions and law review articles devoted to child pornography, television news exposés and major newspapers are often cited as evidence for claims made regarding the victimized position of minors and the predatory nature of adults. I would therefore like to address the manner in which self-produced child pornography is constructed in contemporary media discourse. Through making explicit the ideological agenda of certain journalistic pieces, I hope to further demonstrate how this concept threatens minors’ rights to sexual expression.

In my discussion of media constructions of child pornography, I will focus in particular on a series of articles that appeared in the New York Times concerning Justin Berry, as well as more recent press coverage documenting the proliferation of self-produced child pornography via cell phone use. My interest in Berry stems from the fact that the New York Times articles written about him have been repeatedly cited in legal scholarship concerning child pornography and the articles led to Berry’s testimony before a Congressional subcommittee regarding child pornography in 2006.[20] However, since these articles appeared in 2005, and much journalistic attention has since been devoted to self-produced child pornography, and for the most part been more concerned with the role of cell phones in this practice, I will also engage with more recent articles on the subject.

On December 19, 2005, the New York Times published an investigative article on child pornography written by Kurt Eichenwald, a business reporter who had received acclaim for his coverage of the Enron scandal. Eichenwald organized his article as a life story narrative about Justin Berry, a nineteen year-old boy who had been producing and sharing pornographic images of himself since he was thirteen. The story traces Berry’s life from the point at which he first receives a webcam, through his entrance into online chatrooms and the request and solicitations from adult men that followed. Eventually Berry came to create a series of websites which featured photos and videos of himself in sexual acts, often involving poses or performances that were specifically requested by his adult customers, as well as images of other young performers. The culmination of the article begins with Eichenwald’s intervention into Berry’s life and Berry’s decision to turn away from his child porn projects and partners. In what was apparently intended to be a companion essay devoted to explaining the possible threat that Eichenwald’s unorthodox approach in reporting might pose to journalistic ethics, a sidebar to the Berry portrait appeared in the newspaper’s online edition, explaining the personal actions that Eichenwald had taken to extricate Berry from the child pornography lifestyle, including his efforts to help Berry fight a drug addiction and find legal representation.[21]

The 6,000-word portrait of Berry received much praise in the months after it was first published, with the Times then-public editor Byron Calame calling it in a follow-up article one of the “most important” articles that the paper had published in the recent past and, in a separate follow-up article, noting that had Eichenwald had received a 2006 Payne Award for Ethics in Journalism from the University of Oregon’s School of Journalism and Communications for “preserving the editorial integrity of an important story while reaching out to assist his source.”[22]

However, even in these initial months of positive reception and celebration of Eichenwald’s piece, some journalists questioned the ethics of Eichenwald’s personal involvement with the central source in the story he was reporting.[23] In later months, these questions of method and ethics became more insistent when it was revealed that Eichenwald had given Berry a check for $2000 while in the process of investigating the story, a fact that was made public in 2007 during a trial for one of the men that Berry had identified as his adult business partner.[24] In the prosecution of one of Berry’s other website partners it became clear, still later on, that Eichenwald had paid Berry an additional $1,184 through PayPal for pornographic pictures that were posted on one of Berry’s sites.[25] Some commentators raised questions on what Eichenwald’s motives were in purchasing these images, and whether any might have been of a fourteen-year-old boy who had posed for pictures posted on Berry’s site.[26]

Since writing the Berry article, Eichenwald left the New York Times. For a while he held a position at Condé Nast’s business magazine, Portofolio, but then he left that publication in August 2007 after his additional payment of approximately $1000 to Berry was made public. Eichenwald’s saga has already received much attention from other journalists, most especially Debbie Nathan, who has written critiques of Eichenwald’s work for New York magazine’s website and Counterpunch. Nathan has in fact become a character in the larger story herself, with Eichenwald or stories sympathetic towards him presenting her as a child pornography crusader intent on derailing his career. Given the ample media coverage of this story, I’m less interested in weighing in on the respective truths or biases of the principals and more concerned with how the original narrative of Berry is salvaged by Eichenwald’s sympathizers.

Even in admitting Eichenwald’s ethical lapses in paying Berry a substantial amount of money and then neglecting to tell his editors about those payments,[27] journalists and editors who argue Eichenwald’s cause attempt to disentangle the quality of the article that the methods produced from the methods themselves. For example, in an October 2007 story for the National Public Radio program All Things Considered, the following quote from Eichenwald’s editor at the Times, Larry Ingrassia, is foregrounded:

“To date, while Kurt’s behavior has been challenged, his account of how minors can be exploited by customers and operators of pornographic websites has stood up.”[28]

A more blatant construction of Eichenwald as savior is evident in a lengthy New York magazine piece published in the same month. Beneath the headline “Saving Justin Berry,” a subhead summarizes the story as

Times business reporter Kurt Eichenwald thought he was doing a noble thing by rescuing a teen from the Internet sex trade. He didn’t know how much it would cost him.”[29]

In both these pieces, Eichenwald’s basic project of intervening in a teenager’s life is essentially presented as a selfless act that had tragic consequences for his own career. Perhaps more relevantly, these articles reaffirm Eichenwald’s initial construction of Berry as a troubled child who had never recovered from his initial victimization by adult men. In both his entrance and his exit from child pornography production, the actions of an adult are presented as the necessary catalyst.

While Eichenwald and his proponents (meaning the journalists and scholars who have subsequently cited the story), construct Berry as the victim, responding to the manipulations and instructions of adult puppeteers, the terms “sexual self-exploitation” or “self-produced child pornography” are interestingly absent from his story or the subsequent coverage of it. Instead the term “webcam pornography” is used. This choice in terminology perhaps reflects a desire to distance Berry from any position of agency in the production of pornography. The emphasis on the webcam in the label works to elide Berry’s role in the making of any pornographic material. Instead, the Internet and its attendant devices become the primary culprit, along with, of course, the adult men that have access to Berry through this technology.

In the years since the Berry articles were published in 2005, media outlets have generated numerous reports of minors producing erotic photos or videos of themselves. While some of these reports do acknowledge the minors’ role in making these images by referring to the phenomenon as “self-produced child pornography,” the majority foreground the role of technology, presenting cell phones as the new, pernicious element in teenagers lives that allows kids to covertly photograph themselves and then quickly text the images to an extended network of acquaintances. Most articles indicate as a worst case scenario the possibility or even likelihood of the images ending up online, being viewed by strangers and potentially haunting the subjects for the rest of their lives.

A representative example would be an Associated Press article from January 2008 entitled “Cell Phone Porn Scandal Hits U.S. School.”[30] The article details the somewhat hopeless efforts of police officers in Allentown, Pennsylvania, to recover and delete from all local cell phones images of two naked teenager girls that had been circulated in the local high school, and what’s vaguely described as the “wider world.”[31] Along with the emphasis on the cell phone technology in the headline, the article is accompanied by a large and somewhat sinister close-up of a cell phone, with fingers poised near the keypad, as if indicating the ominous potential of this ubiquitous device. Coupled with this technological finger-pointing is the article’s disassociating of the girls in the photos from any clear position of authorship. One girl, who bared her breasts for a photo, is described as “a victim and she’s not a victim.”[32] The other girl, who in the photo is engaged in a sex act with her boyfriend, is described as potentially ignorant of the fact that she is being photographed. Constructed in this manner, the story becomes one about two girls (the one girl’s male partner for some reason is excluded from the catalogue of victims) who have been sandbagged by technology and an audience that is far too large to be monitored or reprimanded by the police.

Other images run as illustration for articles on sexting also emphasize the role of technology, literally foregrounding a cell phone to the point of obscuring the (presumably) adolescent body that is being photographed.[33] This choice of composition can be read as a strategy employed by media outlets to allude to their topic at hand (child porn) without running the risk of being charged with producing such material themselves. That is, the images must suggest child porn, without actually being child porn. While this visual ambiguity is successfully achieved, it seems important to notice what the images, for the most part, fail to convey. These images successfully indicate that adolescent nude bodies are being photographed, yet what becomes less clear, at least in terms of the illustration, is who is occupying the role of photographer. Simplifying the adolescent’s otherwise complex status as both subject and object of an erotic image, these accompanying photographs emphasize the technology itself as the primary author, relegating the adolescent to the less clearly defined role of object and victim. As a perhaps unconscious attempt to construct a villain and a prey, the images rely on a visual language that has often been employed in presentations of minors as victims of potential molestation (I am thinking in particular of a famous photograph of three young girls fleeing a disembodied male hand that accompanied a 1947 article by J. Edgar Hoover on sexual predators).[34] Of course, the innovation of these illustrations is that technology has been accorded the place once relegated to adult men.

My analysis of the Eichenwald/Berry scandal and more recent articles devoted to teens sending nude photos of themselves should indicate the degree to which the media constructions of self-produced child pornography have represented minors as victims, despite their role as producers of erotic material. This feat has been accomplished through a displacement of blame or threat away from the child-victim onto the technology enabling minors to create and then transmit nude images or videos of themselves and onto the unspecified audience that welcomes the images.

Silencing of minors

As evidenced in the above sections, legal and media discourses contribute to a denial of minors’ sexuality or sexual self-expression. As a document of under-age sexual self-representation, a photo that a minor takes of her own nude body becomes an object that must not be seen and great efforts are often taken to insure its erasure. This erasure occurs on the level of discourse, but also in terms of the physical actions taken by police departments. For example, in the Allentown, Pennsylvania scandal cited above, the local police engaged in the somewhat hopeless project of attempting to locate all cell phones to which the images had been sent in order to ensure that they were deleted and not further circulated. Nearly all media coverage of minors producing and distributing nude images of themselves involves some discussion of police’s futile efforts to stop the dissemination of the material.

Media coverage of self-produced child pornography indicates that along with these after the fact efforts, authority figures, whether the local law enforcement or school administrators, are pro-active about preventing production. To take a recent example, a fifteen-year-old girl in Newark, Ohio, was arrested on October 3, 2008, for taking nude photos of herself on her cell phone and then sending them to high school classmates. The incident was picked up and reported by the Associated Press, but it has been covered in more detail by the local paper, the Newark Advocate. In the multiple articles that have been devoted to the case, the paper indicates that a month before the girl was arrested the local prosecutor had made a presentation at the school, warning students against the practice of producing and distributing images of themselves. After this larger presentation, the girl who was eventually arrested was taken aside and personally warned against engaging in this activity.[35] The article does not provide an explanation of why this girl was specifically targeted.

But the actions of the school indicate a preventative stance, one geared towards not just undoing or repositioning material so that a new meaning is assigned to it. The interventions on the part of the school and the police are forms of instruction. Minors are being given an education in what are the appropriate ways of representing themselves and it is, of course, no surprise that their erotic self is something they are taught to leave out of the picture. I say it is unsurprising because, for more than twenty years, scholars focusing on child sexuality, and in particular adolescent female sexuality, have documented societal efforts to deny the existence of their subject.[36]

But if this offensive effort of erasure is no longer cause for surprise, where does that leave us? If ample research, especially that coming out of girls’ studies, has already documented the silencing of adolescent sexuality, why do legal and media discourses continue to participate in this silencing? And what are the possibilities for bringing together these different forms of discourse so that they better inform each other? These are questions I leave open to future research and engaged political action.


1. “Sex and Tech: Results From a Survey of Teens and Young Adults.com,” 1.

2. See Leary, Smith, for examples of legal scholarship on “self-produced child pornography.” For a representative sample of news articles on the subject, see Clark-Flory, Lithwick, Oglesby, Popkin, Porter, Rubinkam, Semuels. While it is tempting to claim that child pornography produced by minors is a recent and increasingly popular phenomenon, no studies or data have been published in peer-reviewed journals on this topic. “Child Being Tried For Child Porn” is a catchy headline and it has found its way, in one iteration or another, into various forms of popular media. It will most likely become a part of the same cycle of misinformation that constitutes discourses of child pornography in general.

I make no claim that self-produced child-porn is the latest craze sweeping the nation (or many nations), or that the girl next door is now opting to one up Miley Cyrus in the baring of flesh department. Is there a predominant or even alternative move among adolescents to bare their breasts or undercarriages before digital cameras, and then circulate the images? Your guess is as good is mine. What I can point to is new attention paid to this possible phenomenon in media and legal discourse.

3. “Alex Phillips, MySpace”; Bean; “Blog Prank Leads to Child Porn Charge”; Civale; “Girl, 12, Charged With Distributing Nude Pic of Classmate”; “Man Gets Jail Over Photo of Nude Ex on MySpace”; Todd; “Teens’ Nude Pics ‘Spread Like Wildfire’”; “Two Teens Face Child Pornography Charges.”

4. See Kleinhans for a thorough discussion of the effect of child pornography legislation on academic research. Jenkins and Kincaid (1998) also serve as rare instances of academic work that have treated the topic of child pornography.

5. Angelides, Jenkins (1998).

6. Kincaid (1992), 6-7.

7. In this, I hope to contribute to works by scholars such as Amy Adler, Judith Levine, Jenkins, and Angelides who have drawn attention to the ways contemporary constructions of childhood deny minors’ rights and increase their potential for harm.

8. New York v. Ferber (1982).

9. Addressing the case of Paul Ferber, a New York bookseller who was charged for selling two films devoted to images of boys masturbating, the court determined that the material was illegal, despite the fact that it was not obscene according to Miller v. California standards. See New York v. Ferber (1982).

10. New York v. Ferber (1982).

11. Ibid.

12. Prince v. Massachusetts (1944), cited in New York v. Ferber (1982).

13. 1977 N.Y. Laws, ch. 910, 1, cited in New York v. Ferber (1982).

14. New York v. Ferber (1982).

15. Jenkins, 118 – 144.

16. Kleinhans, 22 – 23.

17. New York v. Ferber (1982)

18. A.H v. State (Fla. Dist. Ct. App. 2007).

19. See Leary, Lovejoy and Smith for other examples of legalistic analysis that constructs teens who engage in pornographic production as victims of their own naivety.

20. Eichenwald’s Berry articles also inspired an episode of the seventh season of Law and Order: Special Victims Unit (“Web”), another example of the reach of this particular narrative and the interest it has elicited.

21. Eichenwald, “Making a Connection with Justin”; Eichenwald, “Through His Webcam, a Boy Joins a Sordid Online World.”

22. Calame (2006); Calame (2007).

23. Shafer (2006).

24. Wakeman.

25. Nathan (2007).

26. France; Nathan (2007); Ridley.

27. Paying a source is against the New York Times standards and ethics for reporting. See “Corrections” (2007).

28. Folkenflick.

29. France.

30. Rubinkam.

31. Ibid.

32. Ibid.

33. See, for example, the photographs which accompany “Bodies of Evidence,” and Clark-Flory.

34. Hoover, 33.

35. Zimmer and Roy.

36. See Angelides, Kincaid (1998), Fine, Tolman.


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