TRI in the News

The Fight Over Sex, Nudity, and the First Amendment

May 01, 2008

From The Hook
Original article available here.

Around the time After Hours Video had opened in Staunton [Virginia], kids across the country were abuzz with a different skin scandal. Vanessa Hudgens, the then-18-year-old star of the Disney's Channel's popular High School Musical made-for-TV movies, had taken a few nude pictures of herself using a webcam, she says solely intended for private use, and they somehow ended up on the Internet.

Many speculated that the pictures would mark the end of Hudgens' involvement with the squeaky clean High School Musical franchise, not to mention lucrative endorsement deals with Neutrogena and Old Navy. However, once she issued a near-immediate public apology, the sponsors held fast, and Disney released a statement saying, "Vanessa has apologized for what was obviously a lapse in judgment. We hope she's learned a valuable lesson."

By January, Disney had confirmed to Hollywood trade publication Variety that Hudgens will return to star in High School Musical 3: Senior Year, due to air in October.

As it turns out Hudgens wasn't the only teenager with a digital camera and an imagination. Around that same time, Bedford County Assistant Commonwealth's Attorney Wes Nance first heard of an emerging trend in his just-outside-Lynchburg jurisdiction.

"Since the fall, we've heard of three instances of children as young as middle schoolers who will take naked pictures of themselves with their camera phones and send them to each other," he says. "It's a trend that's becoming more and more frequent."

While Nance handled two of the cases without criminal charges, in a third he found it necessary to charge two teenagers-- both juveniles-- under the state's child pornography statute.

"If children are taking a picture of themselves, they are producing child pornography. If they send it to someone else, they are distributing child pornography. If that child then receives the picture and doesn't delete it immediately, that child is possessing child pornography," he says.

Nance emphasizes that he takes each incident on a case-by-case basis, and that while he wouldn't go into the specifics of the pending charges, he did offer hypothetical criteria.

"Most of the cases we've seen, a middle schooler will take a picture of themselves, send it to the person with whom they are romantically involved, then there's a disagreement between them, and the picture gets sent to a third party," Nance explains. "If a high school senior solicits that kind of picture from a middle schooler, that has much more serious ramifications, and that's going to be handled differently than someone sending a picture to the person they're romantically involved with."

According to UVA adolescent psychologist Peter Sheras, it's natural for pubescent children to experiment with expressions of sexuality.

"There is a tendency for middle-school aged kids to act out as a result of what's happening with them biologically, and challenge the boundaries of appropriateness without it necessarily being a willful act of deviance," he says. "This kind of thing is not unheard of."

Further, Sheras says he's seen instances of middle school students exploring their changing bodies in far more shocking ways.

"I hear about sex parties," he says, "things that consist of acts we would consider to be much more adult than just hugging or kissing."

Nance says he is trying to be extra careful to make sure that the punishment will fit the crime in combatting the issue.

"Prosecution is not the end game," he says. "We understand these kids are in some way inadvertently victimizing themselves, and we take that into account. Once charges are brought, there's a wide range of ways we could handle this. It will ultimately be up to the judge, who has the discretion to decide the punishment, the permanency on their records, and if they will have to register as sex offenders."

Children registering themselves as convicted sex offenders?

"The Commonwealth," Nance says, "can either request it or not request it."

According to attorney John Whitehead, who made his name by taking on religious freedom cases in schools as the founder of the Rutherford Institute, but has since expanded the civil liberties group to take on more secular issues, the inappropriate photography is not the problem, but rather a symptom thereof.

"I'm not sure it's wise to give kids a record, but it illustrates that kids have no limits," says Whitehead. "In the old days, kids had a sense of right and wrong. I talk to kids at UVA, and find that kids just don't know any better anymore, and that the way corporate America pushes sex in their advertising has really affected people."

Such was the concern when a Virginia Beach police officer took a stroll in a local mall and attempted to take a bite out of what he believed was a giant corporation's crime.