The Sext Wars: Consent, Secrecy, and Privacy
posted by Mary Anne Franks
The sexting phenomenon reveals much about contemporary social attitudes towards sexual expression, consent, and privacy, especially with regard to minors. One of the most troubling aspects of the debate over what can and should be done about “sexting-gone-bad” scenarios is the tendency to treat the parties involved as more or less moral and legal equivalents. A typical “sexting-gone-bad” scenario is one in which a young person takes an intimate cellphone photograph of him- or herself, forwards it to an actual or potential romantic interest, and discovers that this photograph has been forwarded to many other individuals, including strangers, classmates, and family members. There are at least four distinct categories of individuals involved in such a scenario: the creator of the image, the intended recipient, the distributor, and the unintended recipient. The second and third categories are sometimes the same person, but not always, and the number of individuals in the fourth category is potentially enormous. The legal response in many of the first sexting cases was to bring child pornography charges (creation, distribution, or possession) against all the individuals involved; the social response has likewise treated the various players as roughly morally equivalent. In some sexting cases, the distributors of the images have not been charged at all, whereas the creators have been. The view that the creators of sexual cellphone images are as bad as or worse than the distributors of those images combines many troubling social attitudes about sexual expression and privacy.
First and most obviously, child pornography is clearly not the right frame of reference for the majority of these cases. The specter of child pornography, rightly invoked in relationships marked by coercion, exploitation, and serious asymmetries of age and power, is too often applied to any situation involving minors and sexuality. Whatever legitimate concerns society might have about sexual activity among consenting teenagers of roughly the same age, they should be clearly distinguished from concerns about pre-pubescent sexual activity and sexual contact between adults and children. The fact that the consequences of a conviction for child pornography include lifelong registration as a sex offender illustrates how poorly suited child porn charges are for most sexting cases.
Thankfully, states have begun to move away from the knee-jerk use of child pornography charges in sexting cases, but the treatment of creators as equal to or worse than distributors persists in both legal and social responses to sexting. The most alarming feature of this equivalence is its erasure of the significance of consent. In the typical sexting scenario (I leave to one side what I would call “harassment sexting” and deal only with images that the creator reasonably believes are welcome) a minor makes a choice to reveal herself sexually to one other person. We may think her choice is unwise or unduly motivated by social pressure, but we must recognize that it is in any event a consensual sexual act (barring extreme youth or mental incapacity). By contrast, the person who distributes the image to other individuals acts not only without consent but most often with the full knowledge and intent that the creator will be humiliated by the distribution. Thus, the distributor engages in a non-consensual sexual act. There is nothing equivalent about consensual and non-consensual sexual acts - the person who sends an image of herself to another person is not equally or more responsible than the person who takes that image and forwards it to hundreds of others. To hold otherwise is to engage in victim-blaming, whether the act in question is sexting or sexual assault. A civilized society recognizes that a person subjected to non-consensual sexual activity should not be scrutinized for what she wore, how much she drank, whom she flirted with, or whether she sent someone a sexual image of herself. The only proper and relevant question is whether she consented to the act in question.
The false equivalence between creators and distributors moreover rests on an implicit (and sometimes explicit) equation of privacy and secrecy. According to this simplistic and pernicious view, a person who exposes details about herself to another cannot complain when those details are subsequently exposed to many others. The idea seems to be that if one really does not want an intimate detail to be exposed to public view, one should never share that detail with anyone. To equate privacy with secrecy in this way is to justify virtually limitless exposure of every intimate detail of one’s life. There are very few aspects of life that are truly secret; most people have revealed their health status, personal transgressions, family history, or sexuality to someone at some point in their lives. This cannot mean that if those details are maliciously exposed to public view without our consent we can only hang their heads in shame for bringing it upon ourselves. As Justice Raymond Peters of the California Supreme Court wrote in Briscoe v. Reader’s Digest Association, the claim of privacy “is not so much one of total secrecy as it is of the right to define one’s circle of intimacy–to choose who shall see beneath the quotidian mask. Loss of control over which “face” one puts on may result in literal loss of self-identity and is humiliating beneath the gaze of those whose curiosity treats a human being as an object.”
Where there is hysteria about the creation of the “sext,” there is cynicism about its distribution. Glaringly absent in the hand-wringing about sexting is scrutiny of the distributors’ behavior. To knowingly expose a person’s intimate details without their consent is an act of malice. This is true whether the motivation is to embellish one’s sexual reputation, to take revenge after one’s advances are spurned or a relationship has ended, or to destroy a reputation through allegations of sexual promiscuity. Such an act demonstrates not only an alarming lack of empathy but a disregard for sexual autonomy, and contributes to the disciplining of sexual expression through shame and humiliation. In spite of this, the mass distribution of sexts is often treated as an inevitability. Those individuals whose lives and reputations have been destroyed by sexting are told they should have “known better,” as if the causal relation between sending an image to one intended recipient and its eventual delivery to hundreds or thousand of others is the same as standing out in the rain and getting wet. Given that so many sexting scenarios involve female creators and male distributors, the failure to examine and challenge the actions of distributors also perpetuates the gender double standard regarding sex. Girls must carefully regulate their sexual expression lest they be viewed as sluts; boys get a pass for their behavior because “boys will be boys.”
A recent New York Times article featured the story of “Margarite,” an eighth-grader whose life has been turned upside down following a sexting scandal. Margarite took a naked picture of herself in front of a mirror and sent it to her then-boyfriend, Isaiah. After they broke up, Isaiah (for reasons that are unclear) forwarded the picture to a former friend of Margarite’s, who forwarded it to everyone in her contact list after adding the text caption, “Ho Alert.” Those contacts forwarded the picture to their contacts, and so on, until nearly every student in the four middle schools in Margarite’s town had seen it. Soon Margarite’s cellphone was full of text messages – expressions of concern, warnings, and leers. Margarite transferred to a school 15 miles away from her old one, but quickly discovered that the students there also had her image in their cellphones. Margarite struggled under the taunts of “slut” and “whore” from her new peers. To his great credit, the county prosecutor, Rick Peters, declined to bring charges against Margarite, but did charge the students responsible for disseminating her image (originally the charges were child pornography; he later amended them to telephone harassment). The media outcry that ensued focused not on the malicious actions of the distributors, or on Margarite’s daily struggle to obtain an education in the face of jeers, insults, and unwelcome sexual advances, but – predictably, tellingly – on the fact that Margarite was not charged along with the others. But perhaps the most depressing detail of all is the self-deprecating lesson that Margarite seems to have taken away from being subjected to sexual exposure and harassment for indulging in a romantic gesture. Asked what she would tell a student thinking of sending an intimate picture, she replied that if they feel “‘like, they’re not sure they should, then don’t do it at all. I mean, what are you thinking? It’s freaking stupid!’”