HR1761: Bad Policy on the Horizon

By David S. Prescott, LICSW

The US House of Representatives recently passed HR1761. Within a few days, ATSA’s Executive Board of Directors issued a cautionary statement. The latest in a long tradition of tough-on-crime measures, this law – now on its way to the Senate – imposes harsh mandatory sentences (15 years at a minimum) for distributing sexually explicit images of minors. It aims to "criminalize the knowing consent of the visual depiction, or live transmission, of a minor engaged in sexually explicit conduct." Certainly, there is no question that we need efforts to clamp down on the distribution of media depicting child sexual abuse; there’s a lot of it out there, and many professionals have seen the direct harm that it can cause. What’s the big deal with this becoming law?

 

Unfortunately, critics of the law, including many ATSA members, have noted that the wording of the law is so vague that it could easily lead to adolescents serving very serious prison sentences for sending pictures of themselves naked to their boyfriend or girlfriend. It might make sense for readers to stop, pause, and consider our own impulsive acts as teenagers. Smartphones are ubiquitous amongst teens, as are questionable decisions. In some imaginable scenarios, a more effective response might be to require parents to take away the smartphone and ground their son or daughter for a month. A 15-year mandatory minimum sentence? Even adults can be prone to stupid online mistakes, whether sharing pictures with the wrong person, sending angry emails without thinking, or making an impulse purchase that they later regret. Don’t kids need guidance and education more than punishment? Going to prison at 17 and coming out at 32?

 

Of course, it is easy to complain about the cavalier ways that unhelpful legislation gets passed. One is reminded of policymakers unconcerned when their wide-cast nets catch more dolphins than tuna. On the other hand, professionals in the field often express deep disillusionment that our knowledge and expertise are not tapped in the creation of these laws. For many years it has seemed that we have to be on constant guard against well-intended but ultimately ignorant legislation.

 

The real story behind the news item is how difficult it is to fully grasp the complexities involved. The world has a long and unfortunate history of causing harm when attempting to legislate sexual behavior. Again, there is no question that young people should be protected from abuse. This outcome virtually always means more to professionals in our field, by far, than the income we receive. Still, the fact remains that sexuality is complicated. Adults sexting each other may seem “deviant” to some and yet is very common. The bright line is consent: one person’s intrusion is another’s intimacy. Who gets to make the call? I am quite certain that the restrictive nature of mandatory minimum sentences will not clarify this.

 

One colleague wondered aloud whether one purpose of the law might be to make it easier for prosecutors to negotiate ever-more-stringent plea agreements. If this is the case, one wonders to what extent this constitutes own form of bullying of young people by adults. It is the author’s belief that we will all benefit more from earnest attempts to help young people, including both those who abuse as well as those who are victimized than we will from this kind of punitive approach. Judicial discretion, assessment, and treatment where it is needed may not be perfect, but all of the indicators are that these are more effective approaches than mandatory minimum sentences for sexting.

 

Frankly, the author applauds ATSA’s board of directors not so much for writing their response, but for the restraint they showed in doing so. It is difficult to imagine how lawmakers would not imagine the downside impact of their actions or recognize how imprecisely they’ve defined their intentions.

 

For all of the above reasons, I know I speak for many when I urge readers in the US to contact their senator. Perhaps someday our lawmakers can use empirical measures of likely effectiveness of proposed laws similar to the ways that the Congressional Budget Office uses expert review to evaluate budgets.