A friend of mine sent me a message with the title “Child porn,” and the body:
I’ve never sent an e-mail with such an explicit title before…
In most (all?) states, it’s legal for a 16-year-old girl to have sex with her 16-year-old boyfriend. Thus, it’s perfectly legal for them to see each other naked. But if he took a picture of her naked, would that be considered child pornography?
Well, yes, that’s right (except that 16-year-old/16-year-old sex isn’t legal in all states — check this this seemingly reliable, though questionably motivated, site). But I’m not sure that this is such an odd result. Allowing oneself to be photographed in a sexual situation poses, as many women have found to their chagrin, special risks of rather emotionally traumatizing humiliation. If I had a 16-year-old daughter, I wouldn’t be wild about her having sex; but if she were doing so (and I realize that I’d have limited ability to stop her), I’d certainly advise her not to let her boyfriend take photos of them having sex. I’d advise my 24-year-old daughter of the same thing, but with the 16-year-old, I’d be more worried, because I think she’d be less likely to properly appreciate the dangers. And it makes sense that the law would help protect 16-year-olds against those dangers.
Of course, sex poses much greater dangers, of death, unwanted pregnancy, and emotional trauma, not just of humiliation. If 16-year-olds are mature enough to have sex, why aren’t they mature enough to agree to be photographed having sex?
Well, I think it’s a mistake to see the age of consent for such matters as purely a function of maturity. Rather, it’s a function of both (1) the person’s likely maturity, (2) the potential harm caused by the behavior (that’s why the age of consent for drinking is higher than that for smoking), (3) the burden on the person caused by the prohibition (that’s one reason why the driving age is lower than the drinking age), and (4) the likelihood that the law will be routinely flouted.
Items 3 and 4 are, I think, why many states have an age of consent lower than 18. If sex was like smoking — something potentially dangerous for yourself and likely for others, but potentially mildly pleasant and the sort of thing that people might want to start doing, though they wouldn’t feel that strongly about it — then we might well allow only adults to do it. If you can’t buy cigarettes until 18, it’s not like that’s a huge burden. But restricting people’s sexual relationships is likely to be felt as a much greater burden by most people than just restricting their ability to smoke, and it’s a burden that people are especially likely to routinely resist. To observe this, ask yourself: What would be the likely social reaction, and the proper social reaction, to proposals to raise the age of consent for sex to 21, which is what it is for buying alcohol? Well, for the same reason, some states may resist raising the age of consent for sex even to 18.
Allowing oneself to be photographed having sex falls much more into the category of smoking or chewing tobacco, I think, rather than having sex. It’s not that great an interference with people’s choices; and there aren’t as many hormones and social pressures that will lead the ban to be routinely flouted. It’s not irrational, then, to try to stop immature people from making such a decision, even when the law decides not to block such people’s decision to have sex.
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