VIRTUAL CHILD PORNOGRAPHY – ASHCROFT 18 USC § 2256(8)(B) – prohibits “any visual depiction” that “is or appears to be of a minor engaging in sexual conduct” (defined in 2256(2)) 18 USC § 2256(8)(D) – prohibits “any sexually explicit image that was advertised, promoted, … in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct.” State interests in regulating pornography (pp ):  Pedophiles use images to encourage children to participate in sexual activity;  Virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct  Virtual child pornography makes it harder to prosecute real pornography (need to eliminate it to eliminate market for the real stuff)

SEXTING Sexting: the act of sending sexually explicit messages or photos between mobile phones or other electronic devices, usually via text messages Questions to consider in all of the hypotheticals: 1.Can the students be prosecuted under the laws listed in the reading assignment 2.Is it good policy to prosecute them? A.Does it depend on the circumstances? B.Why do the circumstances matter if it does so depend? C.Is there danger in such differentiation in circumstances without changing the law? D.Are the new sexting laws a better approach?

HYPOTHETICAL NO. 1 Anna (16) & Brian (17) are dating. Anna decided that she and Brian should record themselves having sex. The two made several videos with Brian’s iPhone, and Brian kept them on his phone, never showing them to anyone else. Once Anna got a new Verizon Droid, she began taking naked pictures of herself, including full frontal nudity with very suggestive poses, and sent them to Brian. Brian returned the favor. Anna also never showed the pictures to anyone, not even her best friend. Brian recently lost his iPhone at school where a teacher found it and saw the photos. She then turned the phone over to the adminstrator/prosecutor. Can/should the prosecutor go after A&B under the Ohio laws from the reading assignment?

HYPOTHETICAL NO. 2 Carla & Diann (15) are friends with Edward (17). Recently, while exploring their sexuality and at the girls’ urging, Edward sent a picture of his erect penis to their iPhones. They then sent two pictures of themselves to his iPhone. In one picture they were kissing; in another they were facing the camera while standing topless with their arms intertwined around each other. Without consulting Edward, Carla and Diann also posted both pictures to their Facebook page although they placed access to it on a private setting where only a very few friends could see it Edward was none too happy about this when he found out, especially when he saw the tag line under the photos, which said “Look at our awesome bods!” After a teacher seizes C&D’s phones, the pics are discovered. She then learns of the Facebook post. Can /should the prosecutor charge CD&E with violating the Ohio laws? Are CD&E in different positions re the Facebook posts?

HYPOTHETICAL NO. 3 Faith is apparently raped while incapacitated at a party after having had a significant amount of alcohol to drink. She has a somewhat fuzzy memory of the events that took place but believes that the encounter with high school classmate George was non-consensual. Video appears on a website showing that Faith & George did have a sexual encounter the night of the party and that George had friends post the video of the encounter in order to brag. Much of the video confirms Faith’s story. Can/should the prosecutor charge George with violating the Ohio laws?

SEXTING STATUTES Arizona: Minor under 18 guilty of petty offense if knowingly or intentionally uses electronic communication device to transmit/display a sexually explicit depiction of a minor to one other minor. If sent to more than one person, criminal offense increases Generally no prosecution if minor did not solicit the image, takes reasonable steps to destroy the image, reports transmission to certain adults AND, does not forward the message Under Missouri law it is a Class A misdemeanor for a minor to possess or distribute sexually explicit images of a minor, if it is the minor’s first offense. A Class A misdemeanor is punishable by up to 1 year in jail and $1,000. If a minor is caught possessing or distributing a sexually explicit image of a minor a second time, the crime is increased to a Class D felony, which is punishable by up to 4 years in jail and a fine of up to $5,000.