06/03/2014 12:29 EDT | Updated 08/03/2014 05:59 EDT

Calling Sexting Child Pornography Is Bad Policy

On several occasions, police and prosecutors have used the child pornography provisions in the Criminal Code to address incidents of teen "sexting." The fact that these offences can 'catch' this kind of conduct has led some commentators to argue that there is no compelling reason to enact the proposed offence of "non-consensual distribution of intimate images." I disagree.

Tim Robberts via Getty Images

On several occasions, police and prosecutors have used the child pornography provisions in the Criminal Code to address incidents of teen "sexting." The fact that these offences can 'catch' this kind of conduct has led some commentators to argue that there is no compelling reason to enact the proposed offence of "non-consensual distribution of intimate images." Indeed, the Canadian Bar Association recently suggested that the new legislation does nothing more than extend a protection to adults that is already provided to children.

I disagree. To understand why, we need to appreciate that different criminal offences target different wrongs and harms. These differences should inform how prosecutors exercise their discretion.

Consider a recent case in which a 17-year-old woman was convicted of distributing child pornography, after spitefully texting a photo of her boyfriend's ex-girlfriend. There is no doubt that she engaged in a wrongful course of action that may be appropriately targeted by the criminal law. Nonetheless, it will strike most of us as intuitively obvious that prosecuting her under s. 163.1 of the Criminal Code seriously misrepresents the nature of her wrongdoing. This is true whether or not the sentence she ultimately receives is roughly proportionate to the gravity of her wrongdoing.

How do we explain this intuition? Well, let's start with the nature of the wrong targeted by the child pornography provisions. In Sharpe, the Supreme Court of Canada defined the purpose of the child pornography provisions in these terms:

Parliament's main purpose in passing the child pornography law was to prevent harm to children by banning the production, distribution and possession of child pornography, and by sending a message to Canadians "that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners." (para 34)

We can agree that Parliament should protect children from exploitation. But it seems inapt to characterize the 17-year-old's behaviour as "exploitative." We do not have, here, the sort of inherent power imbalance that we would find between adults and children. No one alleges that, by prosecuting this case, we are (or could be) sending a message about child sexual abuse. No one claims that the victim in this case is not, by virtue of her age alone, an "appropriate sexual partner."

The problem with the defendant's conduct simply has nothing to do with the complainant's age. It has everything to do with the fact that the defendant violated the complainant's privacy interest in images given (however unadvisedly) to her boyfriend, and in doing so exposed her to a campaign of slut-shaming.

By distributing those images, the defendant used digital technology to essentially "crowdsource" and aim sexually objectifying attitudes and opprobrium directly at the complainant. (I borrow this language from a forthcoming paper by Carissima Mathen.) It is this kind of wrong that the proposed offence of "non-consensual distribution of intimate images" is intended to target. (For a fuller discussion, see here.)

Does it matter? I imagine many lawyers shaking their heads right now. As long as serious wrongs are prosecuted, many will say, it doesn't matter what label we apply to the offence. But that's a short-sighted view. As HLA Hart observed more than 50 years ago, the criminal law's most important function is arguably educative and expressive.

It is the means by which Parliament declares certain courses of action off-limits. (See my discussion here.) Prosecuting conduct as though it amounts to one kind of wrong, when in reality it is something altogether different, obscures that message. It also makes the criminal law look like an absurd game of gotcha instead of a deadly serious enterprise whereby citizens are held accountable for clear and articulable wrongs.

So the new offence isn't only valuable insofar as it encompasses adult victims. It articulates, for the first time, that a certain kind of sexual objectification is criminally wrongful. It also means that, for the first time, we can prosecute offences like the above without distortion or undue gamesmanship.

The CCSO Cybercrime Working Group -- whose recommendation gave rise to Bill C-13 -- considered the overlap between child pornography provisions and the proposed offence of non-consensual distribution of intimate images. It expressed concern that the new offence would be used by prosecutors in cases where child pornography charges were more appropriate -- perhaps to avoid the latter's mandatory minimum penalty, and give more flexibility in plea bargaining. The result, the Working Group feared, would be a watering-down of the child pornography prohibitions. (p 18)

This is the problem of overlap: when the same course of action can be prosecuted in more than one way, we expand the discretion of prosecutors. (Douglas Husak, in his important work on overcriminalization, focuses on this point as well as anyone.) Now, if we ignore the fact that different offences target different wrongs, then this added discretion is unproblematic. Each offence, in that case, is basically equivalent. A conviction is a conviction is a conviction. It is only when we see each offence as an attempt by Parliament to address a unique kind of wrong that it starts to look important that prosecutors not use their discretion in certain ways -- specifically, by using a criminal offence designed to target one kind of wrong as a means of convicting people for actions that are wrongful in some other sense.

The upshot is this: Although the elements of the proposed offence overlap with those of distributing child pornography (and other prohibitions), prosecutors do not have a license to choose between them on a whim.

In the end, the Working Group simply "recommend[ed] that the proposed new offence should take into account how to provide prosecutors with appropriate flexibility while maintaining the integrity of related offences." But the mere fact they perceived an issue in the first place underscores my point: to know how Crown discretion should be exercised, we need to be more careful in articulating the precise nature of the wrong that Parliament means to address.


Photo gallery 9 Controversial Sexting Scandals See Gallery