But surely, child pornography laws were not intended for this.
A.H. (So identified because court documents include only initials when dealing with minors), a sixteen-year-old girl, and her seventeen-year-old boyfriend identified only as "J.G.W" took nude photos of themselves engaged in an unspecified sex act at her house and then sent them to his personal email address. Neither showed the pictures to anyone else.
Court records don't indicate just how they were caught, but they were---And they were both charged with producing, directing or promoting a photograph featuring the sexual conduct of a child. J.G.W was also charged with possession of child pornography because of the contents of his email account.
Under Florida law, a teenager cannot be declared a delinquent for having sex with another teenager. No matter how you may feel about teen sex, that law is just. The law is designed around preventing, and failing that, punishing the sexual exploitation of a child by an adult.
The Florida State Court of Appeals ruled 2-1 that the charges against A.H. and J.G.W. should stand. Judge James Wolf wrote in his majority opinion that "the reasonable expectation that the material will ultimately be disseminated is by itself a compelling state interest for preventing the production of this material" despite there being no evidence that either party was trying to disseminate the photographs. More people saw the photographs because these two children were dragged through the court system than would ever have seen it had they been left to their own devices.
Funny how that worked out, huh?
From Judge Phillip Padovano's dissent:
"If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor. Although I do not condone the child's conduct in this case, I cannot deny that it is private conduct. Because there is no evidence that the child intended to show the photographs to third parties, they are as private as the act they depict...
The critical point in this case is that the child intended to keep the photographs private. She did not attempt to exploit anyone or to embarrass anyone. I think her expectation of privacy in the photographs was reasonable. "
Padovano gets it right.