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Over the recent years, sexting has become an increasingly controversial phenomenon. With the rapid development of technology, sexting practices outpaced legal regulations. Some authors argue that it remains an open question whether law can properly distinguish the cases of sexual abuse and pornography from the cases of voluntary exchange of explicit images via phones by minors, as well as adults. According to Ross, these legal regulations contribute to the problem rather than solve it (Ross, n.d., p. 4). We will examine the issue from several theoretical standpoints in order to determine the nature of the problem. Finally, we will argue that sexting between two consenting minors is a phenomenon that cannot be identified with sexual abuse or pornography and that the existing legislation exacerbates the problem, prosecuting minors who engaged in the activity voluntarily as criminals, instead of formulating the necessary laws that would clearly delineate sexual abuse from personal matters of neither criminal no deviated character.
Sexting Phenomenon and Ethical Questions
Undoubtedly, the rapid development of technology in the XXI century has transformed our world a great deal. State-of-the-art technologies influence virtually every aspect of our lives on a daily basis. Sexuality and social relationships between teenagers are not an exception. Thus, it is evident that sexting as an activity that many teenagers engage in poses a problem for the society, as it sheds light on the ethical dimension of the issue. Does anyone have a right to judge those engaging in the activity voluntarily, even when they are underage?
The cases described by Ross are disturbingly illustrative: it seems as though most people are willing to judge. Two underage persons sending each other explicit photos of themselves on a voluntary basis can barely qualify as pornography, sexual abuse, or any other type of criminal activity. It is clear that an ethical dilemma is at hand: does sexting qualify as an immoral behavior, even when it is done on a voluntary basis? Should it be considered obscene and deemed inappropriate by the public opinion? And is it an indicator of a certain deviation among teenagers, or is it a consequence of our pop culture, emphasizing sexuality each step of the way? Can it be argued that from a purely historical standpoint, sexuality has always been under such a degree of scrutiny that it is hardly surprising that these issues are taboo today?
A brief historical overview of the issue helps shed light on the public perception of sexuality and the legal constraints it put throughout the ages on those eager to express it. Ross points out that many laws meant to protect women from being sexually exploited enacted before the First World War were a way to control their natural sexual responses (Ross, n.d., p. 6). The Comstock Act was adopted in the U.S. in 1873 during the so-called ‘white slave scare’ (Ross, n.d., p. 6). Multiple anti-prostitution regulations were introduced, as the sex trade was seen as one of the indicators of the liberation of female sexuality. 1920s saw the suffragettes struggling to secure the voting rights for women. After the World War I, women were divided into two clear groups: those subscribing to the strict moral codes, and those wishing for change and with a progressive outlook on women’s position in the society and the corresponding moral norms.
The social purity reformers prosecuted women eager to express their sexuality. The case of Mae West described by Ross provides an ample illustration of the problem (Ross, n.d, p. 9). The plays performed by West were seen as a threat by the society, as they presented not only scenes of explicitly sexual nature but also certain elements of gay culture. The public saw these rebellious artistic expression as a dangerous virus that could be easily spread. Thus, it is clear how sexuality was linked to obscene behavior that posed a threat to society and required preventative measures. Nowadays, voluntary sexting is a similar phenomenon of sexual expression that pertains to personal matters of each individual. Laws that strive to invent punishments for these practices are, in fact, infringe on the liberty of an individual. The Fayetteville sexting case mentioned by Ross is a perfect example of the absurdity of this legislation, as it treats voluntary actions as if they were of a criminal character.
Modern Legal Context
The cases presented by Ross offer a comprehensive overview of the legal approach to the issue at hand. The Fayetteville Romeo and Juliette case was an incident that involved two 16-year-olds that exchanged pictures of sexually explicit character over their phones. Despite the fact that both teenagers engaged in sexting on a consensual basis, they had to stand trial as adults and face charges of sexually exploiting the underage victims. Thus, the teenagers in question turned out to be both the criminals and the victims at the same time. In order to avoid being placed on a sex offender registry, they had to plead guilty, serve probation, and attend classes on good decision-making (Ross, n.d., p. 2).
From the Foucault’s standpoint discussed by Ross (n.d., p. 21), the laws that attempt to punish people expressing their sexuality are aimed at exercising a greater degree of control, as such behavior is considered a threat to the stability of society. Indocile bodies cannot be easily controlled, conformed to the norm and thereby they represent a menace to the existing order. The sexting phenomenon is a valid example of such a behavior that ought to be punished from the legal point of view, as it threatens to modify the established norms and principles of ethics and morality. However, such legislation bears a hint of absurdity, not to mention its infringement on the personal rights of each person to express their sexuality in whatever way they see fit, provided it brings no harm to another human being. Sexting should not be under scrutiny as a socially dangerous sexual deviation, as it involves two consenting persons that have the right to do so.
Sex Discrimination Perspective
MacKinnon discusses the issue of sex equality in an innovative way, providing a perspective that helps shed light on the actual treatment of the matter. She argues that sex equality is a question of difference in our society that inevitably considers sex to be a bipolar phenomenon (MacKinnon, 1984, p. 90). The author claims that the issue of sex is a continuum, instead of bipolarity, and thereby cannot be considered as a matter of difference but rather of dominance. By applying MacKinnon’s perspective to the question of sexting, we can notice a new aspect of the problem.
By punishing the Fayetteville teenagers, the authorities send a clear message: this is a deviation from the norm that should be punished for all to see and it must never happen again. The norms of society pertaining to sexual expression are also bipolar, i.e. allowing no deviation from the established form. However, in our rapidly changing world, it is necessary to adjust the norms to the changes in human behavior. Sexual expression via phone sexting is one of the examples how the human behavior has been changing under the influence of technology. Morals and ethical norms should not be considered separately from the actual state of things. Provided the sexting activity is consensual, voluntary, and brings no harm to either party, legal regulations must not approach the activity as a crime.
From the perspective of socialist feminism, it could be argued that sexting is another dangerous example of objectification of female body and the dominance that men exercise over women (Comack, 1952, p. 49). A woman sending sexually explicit pictures of herself could be understood by other women as conforming to the male dominance, as well as encouraging the objectification of female body. However, it cannot be overlooked that in the case of Fayetteville teenagers, both of them engaged in the activity. Thus, the case cannot be considered as limiting the rights of women or bearing a character of sexual abuse of women, as the activity was voluntary, as well as mutual.
The cases presented by Ross offer a comprehensive overview of how the legal system approached the sexting phenomenon. Overall, the punishments imposed on the teenagers are of absurd nature and are clearly aimed at attempting to exercise a greater degree of control over the personal matters of sexual expression. When it is done on a consensual and voluntary basis and brings harm neither to the people involved nor a third party, sexting should not be seen as a crime.
Comack, E. (1952). The feminist frameworks. In E. Comack & K. Busby. Locating Law. Manitoba: Fernwood Publishing.
MacKinnon, C. A. (1984). Difference and dominance: on sex discrimination. In R. T. Kennedy & K. T. Bartlett (Eds.), Feminist legal theory: readings in law and gender (pp 81-94). Boulder, CD: Westview Press.
Ross, M. (n.d.). The sexting paradox: a legal history from Mae West to Fayetteville Romeo and Juliette.