The internet has made sharing information, and more specifically, images, incredibly easy. But when those images are seen as offensive, obscene or pornographic, does the law view cyber victims in the same way that it views victims of in-person offenses?
When digital content becomes criminal, the prosecution can still prove to be difficult due to a number of variables. A prosecutor’s jurisdiction is limited by geography while the internet isn’t confined to any one state, city, or country.
In Indiana, something is obscene if, “the average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex,” and if the subject or performance describes something in an offensively sexual way, or if it lacks “serious literary, artistic, political, or scientific value.”
Problems arise with such an openly subjective definition of “community standards.”
“It’s an ‘everybody’s got a camera’ problem,” explains St. Joseph County cyber crimes investigator Eric Tamashasky. “One of the challenges in enforcing obscenity law with the internet is the basically border-less nature of the internet. Obscenity is a community-based standard and so the question is: what community standards are you applying?”
If someone logs into Facebook and opens up an inbox message and sees an unsolicited nude photograph the path towards legal recourse isn’t necessarily the easiest.
“The challenge we’re facing now in this era is, as technology grows, law enforcement needs to keep up,” Tamashasky explained. If someone from Little Rock, Arkansas sends an image of their genitals to someone in South Bend, Indiana, which department has jurisdiction?
“So you’re going to get people who say this picture that I’ve taken of myself is fabulous, it’s artistic, it actually does have a serious literary, artistic, political or scientific value. I would think most jurors who are faced with a picture of somebody’s genitals are going to say, no, that’ snot something people should tolerate,” however, Tamashasky most reports of unsolicited obscenity and nudity online aren’t reported to the authorities.
The application of community standards is abstract at first glance, but upon application, Tamashasky explains the loudest or most offended community tends to dictate the definition.
“It’s a heckler’s veto,” Tamashasky explains, “all you have to do is find one community and the town from Footloose can basically rewrite the internet and that’s a problem.”
Reporting:
One of the simplest things for recipients of questionably obscene material to do is to report the images to the social networking site through which the image was sent and received.
Police Departments must make the determination whether the nude images are pornography, and therefore protected by the first amendment, or obscenity worthy of prosecution. Tamashasky explains it takes much longer for local law enforcement to reach that decision than complaining to Facebook or Twitter would.
“The difference between First Amendment pornography and unprotected obscenity is a blurry line, and it’s not very clear, and it changes from jurisdiction to jurisdiction,” according to Tamashasky, most cybercrimes units focus on child pornography and unless something is brought to their attention, they don’t seek out misdemeanor cases.
Another question law enforcement and prosecutors are forced to sort through is who owns the digital property once it is sent online? Does it belong to the sender, or can the recipient do whatever they please with the image once they receive it?
“That is what’s exciting in the law side of things. They’re struggling to answer this because everyday technology changes and the question is, do we have an old law that fits this new problem, or do we need a new law to address the problem?” the answer right now is “don’t know” according to Tamashasky.
Consequences of unsolicited obscenity :
When children and adolescents are exposed to unsolicited obscenity there can be psychological consequences, according to Dr. Erin Leonard, a practicing psychotherapist in Mishawaka.
“If they’re exposed to sexually explicit material before they’re psychologically and emotionally ready to deal with it, it can have a very traumatizing impact,” said Leonard.
There are two times during human development when curiosity about sexuality is healthy: during toddlerhood and adolescence. During those two stages, Leonard said it’s normal for children to ask questions and focus on the human form.
But when a child is confronted with potentially volatile or violent images of nudity before they’re mentally prepared or equipped to process them, the incident can be traumatic.
Leonard explains people typically do two things to process trauma: repeat whatever they see in an attempt to gain mastery over it, or sometimes they shut down.
Children exposed to hyper-sexualized content can, in turn, become hyper-sexualized and seek out more of that content.
“That really is the danger when they seek attention because maybe they’re not getting enough attention from their peers, not enough positive attention,” or they may not be getting appropriate attention at home.
Another concern for parents is the creation and distribution of child pornography by minors themselves. Teenagers under the age of 18 technically produce child porn when they take a nude “selfie” and send it to a boyfriend or girlfriend. When those photos circulate, the teens behind it all are responsible for the distribution of child porn. Leonard discusses the devastation that occurs from Sweeping Sexual Abuse Under the Rug.
“Even though they think that their information or their images and things like that are going to be kept private on their social media site or be deleted right away, there’s still a cyber footprint that might remain for years,” Leonard explained.
St. Joseph County Police’s cyber crimes unit has uncovered websites with servers based outside of U.S. jurisdiction which has nude “selfies” posted by area code. Once those photos are up, it’s incredibly difficult if not impossible to get them down.
Get your copy of Dr. Leonard’s latest book Emotional Terrorism.