Online warnings about the dangers of teen sexting, from sources ranging from the FBI to MTV, frequently warn that even a minor who takes a sexually explicit picture of themselves can be prosecuted for violating child pornography laws.
And these prosecutions really do happen. One Pennsylvania district attorney threatened child pornography charges against two teen girls who posed for a photo in their bras making peace signs, and tried to force them to write a report on why their actions were wrong and "what it means to be a girl in today's society." (With the ACLU's help, the girls' parents sued to stop the D.A. from following through.) A study from the American Academy of Pediatrics found that in teen "sexting" incidents reported to the police, even in cases where the sexting was between two minors and there were no "aggravating" circumstances (abuse or lack of clear consent), police made arrests in 18% of those cases. (The arrest rate was higher in cases involving "aggravating" circumstances or where an adult was involved in the sexting.)
Meanwhile, hundreds of articles have been written about Porn.com being forced to take down the nude pictures of McKayla Maroney, after receiving word from her lawyers that she was underage when the pictures were taken. As far as I can tell, none of the articles about the incident mentioned that, if her lawyers are correct, then Maroney could be theoretically prosecuted for creating, possessing, and distributing child pornography. Of course nobody wants to see that happen, but the elephant in the living room is that before Maroney's photo leak scandal, many teens were arrested for doing essentially the same thing, and more of them will continue to be arrested after the celebrity nude hacking scandal is old news.
That's not to say that Maroney's photos necessarily did constitute child pornography. Nude or topless photos of minors are not necessarily illegal, if they're not sexually explicit; Thora Birch was under 18 for her topless scene in American Beauty. I haven't seen the Maroney photos (honest -- although I'd like to think that whatever she was doing, she was making her not impressed face). Maybe they really were explicit enough to qualify as child pornography. Maybe they weren't, and Maroney's lawyers misunderstood the law and thought that any of her underage nude or topless selfies were automatically child porn. Or maybe her lawyers knew the pictures were not really child porn, but they were bluffing when they demanded that Porn.com take the pictures down. Whatever the case, Maroney's lawyers claimed the pictures were child pornography, and if they're right, the lawyers just criminally implicated their client as well.
If the pictures really were explicit and she sent them to any of her same-age friends, she could also be charged with disseminating obscene material to a minor. Iowa teenager Jorge Canal was convicted on this charge, and his conviction upheld by the Iowa Supreme Court, after his 14-year-old female friend asked him to send him a picture of his erect penis, and he obliged. (Although since he was 18 at the time of sending the picture, there was no child porn charge.) If his defense attorneys tried a defense along the lines of, "My clients actions harmed absolutely no one, and it's the prosecutors who have ruined the lives of not only my client but also his supposed 'victim', by putting them both through a trauma that will hang over them for the rest of their lives," it didn't work.
Many states have attempted to pass laws specifically addressing sexting by and/or to teenagers by reducing the penalty from a felony child pornography charge to something less severe. What all of these laws still have in common, though, is that they retain the option to impose some criminal penalties on teens for sexting even among themselves. The ACLU has opposed such a bill in Pennsylvania on the grounds that even a misdemeanor charge for teen sexting would be too draconian of a punishment.
"The Need for Sexting Law Reform: Appropriate Punishments for Teenage Behaviors", written by Alexandra Kushner, a legal associate at Winston & Strawn LLP, and published in the University of Pennsylvania Journal of Law and Social Change, argues for de-criminalizing consensual sexting among teens. (The paper argues for retaining the option to prosecute cases involving abuse or malicious forwarding of a sexted picture.) Much of the paper is refreshing for the plain language not often found in legal argumentation; discussing the case of a 16-year-old and 17-year-old who faced child pornography charges for taking sexy pictures of each other, Kushner writes, "They should not have been charged at all because they were not harming each other or anyone else by taking and keeping these pictures." This is exactly the right way to frame the issue, but to most legal scholars, sentences like these are considered simply adorable.
For the other side, you can read "A Legal Response Is Necessary for Self-Produced Child Pornography", by law professor Susan Hanley Duncan. I found it less than convincing because much of the paper stresses that sexting can have serious unforeseen consequences for teens, including public humiliation if the pictures are forwarded to their friends. Well, we know that. But that just raises the obvious question: Isn't that punishment enough, and why do we need criminal charges on top of that? Even buying into the stereotype that teens are focused only on the present -- if a teen is not deterred by the humiliating prospect of having her photo forwarded around the entire school, then why would they be deterred by the threat of prosecution, which is less likely, further out in the future, and a potential risk that they might not even be aware of?
(Note that this logic does not apply to students who forwarded sexted images to harass the person appearing in them -- the person forwarding the image usually does not face the short-term threat of public humiliation, which means a legal penalty might be the only deterrent they would care about. That's one argument for retaining the option to prosecute people who forward sexted pictures maliciously.)
Even the FBI, in their "Advice for Young People" regarding sexting, betrays a certain embarrassment over the hypocritical nature of the laws. To a person forwarding an image of someone else, they warn: "You could face child pornography charges, go to jail, and have to register as a sex offender;" but to the person taking the original picture, they say only vaguely that you could "even get in trouble with the law" -- while leaving out the fact that all of the draconian penalties in their list, also apply to the person who takes the picture, under the laws that the FBI enforces.
But unless or until sexting laws are changed, Maroney probably did violate them according to the statements from her own lawyers, which might lead cynics to think that she escaped being charged because of her celebrity status. I think that's unlikely. Recall that "only" 18% of teens who sexted each other were arrested in cases where the incidents were reported to police, so if she had been a non-celebrity, she probably would have gotten off scot-free as well. Whether a teen gets arrested or charged for "sexting," probably depends less on what they actually did, than the luck of the draw as far as which police officer hears the report of the incident, and which prosecutor ultimately has the discretion to decide whether to file charges. (Of course that makes me a cynic too, but I'm the kind who thinks that people see patterns and non-existent reasons for outcomes that are far more random than we'd like to believe.)
Public reaction is another matter. When District Attorney George Skumanick prosecuted those two girls for posing in their bras making peace signs, he may not have had all of the public on his side, but there would have been an absolute tsunami of outrage if he had tried the same thing against a celebrity like Maroney, trying to get her to write an essay about "what it means to be a girl in today's society." I'm sure she would have been not impressed.