In recent years there has been a plethora of cyber-sex/sexting exploitation cases concerning minors in Canada and around the world. The digital age has raised a whole series of questions regarding these cases, and how to treat minors when it comes to charging and sentencing.
This past week, 10 teenage boys, in Laval, Quebec, were arrested and charged with possession and distribution of child pornography; two of these boys were charged with production of child pornography. Now, before jumping to condemn these boys with the label of sex offender and all of the ramifications that go with that title, perhaps we should look at just what these boys are allegedly guilty of.
“There was a little network of these boys who all knew each other,” Laval Police Const. Nathalie Lorrain said. “They convinced girls, some of them their own girlfriends, to send them sexy pictures and then they would transmit them. The young girls wanted to charm these guys so they sent the photos. Some of the boys even sent pictures of their penises to get the girls to send something back.”
So, there are a couple of issues here that aren’t being considered. For starters, it must be noted that the boys did not produce the photos of the girls that they obtained: the girls took selfies and sent them to the boys. So if one were to charge anyone for production of those photos, specifically, the fault is with the girls, regardless of whether or not they were trying to “charm these guys”. Another issue is that it seems, if the boys are going to be charged with possession of child pornography, so too should the girls who were sent photos of the boys’ penises. There seems to be a specifically gender-bias issue here. If the law is going to be as unwavering as to hold 10 boys, sharing naughty pictures of their girlfriends, accountable for charges like possession and distribution and production of child pornography, then it follows that, conversely, the girls should at least be on charges of production and, in some cases, possession of child pornography. Obviously, in both cases, this is ridiculous.
“Considering the heavy stigma attached to child pornography, charges are totally unwarranted in this case. Although what these boys did may fit that definition, Crown attorneys are given a berth of discretion to avoid charging in circumstances such as this. One would think a week’s detention would suffice,” said Dalhousie University senior law student, Alex Hartwig. “The criminal law is a blunt instrument and should always be used as a last resort.”
Hartwig echoes Dalhousie’s Wayne MacKay, who chaired the 2012 Nova Scotia Task Force on Bullying and Cyberbullying, and made a similar statement after the Rehtaeh Parsons case, which dealt with sexual assault, coupled with production and distribution of child pornography, culminating in the suicide of the young Rehtaeh Parsons – a very extreme case with greater, extenuating circumstances.
To suggest that the child pornography laws are too harsh when dealing with situations such as that of the 10 Laval boys is a consideration that has reverberated across the country and beyond:
“What concerns me is harsher punishments for youth when the disciplinary measures should be educational,” says Shaheen Shariff, an associate professor in the faculty of education at McGill University, working to educate kids in digital citizenship.
Assistant professor of communications at the University of Colorado Denver, Amy Adele Hasinoff, believes that, “Sexting is a sex act and if it’s consensual, that’s fine…Anyone who distributes these pictures without consent is doing something malicious and abusive, but child pornography laws are too harsh to address it.”
Sean Robichaud, a Toronto defence attorney at Robichaud’s Barristers and Solicitors, helps to interpret the Youth Criminal Justice Act, a document meant specifically to aid in the appropriate sentencing of minors through rehabilitation, and education:
“Youth charged with criminal offences are dealt with under the Youth Criminal Justice Act. This act sets out the special ways that youth ought to be treated and recognizes a number of principles that differentiate them from adults…Young people lack the maturity of adults and the youth system is different from the adult system in many respects, including: measures of accountability are consistent with young persons’ reduced level of maturity; procedural protections are enhanced; rehabilitation and reintegration are given special emphasis; and the importance of timely intervention is recognized.”
Now there may not yet be a section of the YCJA that recognizes cybersex crimes like naughty selfies passed around minors, but there is a precedent, upon which sexting laws regarding minors could be built. This precedent comes from a 2001 Supreme Court decision to establish what is called the “intimate photo exception”.
Chief justice Beverley McLachlin, stated that if the photo or video was taken by one of the people involved, and if it was consensual and kept private, then the image is not considered child pornography.
So the only question which remains to be answered with regards to the Laval 10 is: what to do about the non-consensual sharing, amongst friends, of these photos? Production is not the issue. Possession is not the issue. Distribution is the issue. But should 10 horny, unwittingly criminal, teenage boys be held to the Criminal Code’s penalties for child pornography under section 163.3(a), which states that the distribution of child pornography is: “an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year”?