Sexting or Self-Produced Child Pornography – The Dialogue Continues – Structured Prosecutorial Discretion Within a Multidisciplinary Response

One need only read the newspaper to see a rising dangerous phenomenon among juveniles: the creation and subsequent sharing via the Internet of sexually explicit photographs. This self exploitation is not only a tragic social problem, but a growing legal one as well. Judges, attorneys, and legislators, are forced to address this activity because, in addition to being self destructive, it is also a violation of state and federal child pornography laws. Juvenile self exploitation illustrates a clash of two lines of jurisprudence and public policy: the aggressive opposition to child pornography and the more lenient rehabilitative treatment of juvenile self destructive behavior. This article offers an in depth analysis of the appropriate societal and governmental response to this behavior and, specifically, whether juvenile prosecution should remain an option for the state. The article analyzes all the growing number of cases in this area; other legal models including criminal child pornography laws, child prostitution laws, and statutory rape laws; the doctrinal bases for governmental intervention in juveniles\u27 lives; as well as numerous social science studies concerning child pornography\u27s effects. Among those most closely examined are the social harms recognized by social science, the courts, and legislatures. The article concludes that, based upon the vast social harms caused by child pornography to children within and exposed to the images, the purpose of the juvenile justice system, and the need for a deterrent to this behavior, juvenile prosecution should remain an option for the state. While prosecution should not be mandatory, policy makers should create a policy and protocol for addressing this self destructive behavior. The article concludes with a proposed protocol offering guidance to policy makers as to when prosecution befits the activity and when it does not