The Sext Wars: Consent, Secrecy, and Privacy

The sexting phenomenon reveals much about contemporary social attitudes towards sexual expression, consent, and privacy, especially with regard to minors. One of the most troubling aspects of the debate over what can and should be done about “sexting-gone-bad” scenarios is the tendency to treat the parties involved as more or less moral and legal equivalents. A typical “sexting-gone-bad” scenario is one in which a young person takes an intimate cellphone photograph of him- or herself, forwards it to an actual or potential romantic interest, and discovers that this photograph has been forwarded to many other individuals, including strangers, classmates, and family members. There are at least four distinct categories of individuals involved in such a scenario: the creator of the image, the intended recipient, the distributor, and the unintended recipient. The second and third categories are sometimes the same person, but not always, and the number of individuals in the fourth category is potentially enormous. The legal response in many of the first sexting cases was to bring child pornography charges (creation, distribution, or possession) against all the individuals involved; the social response has likewise treated the various players as roughly morally equivalent. In some sexting cases, the distributors of the images have not been charged at all, whereas the creators have been. The view that the creators of sexual cellphone images are as bad as or worse than the distributors of those images combines many  troubling social attitudes about sexual expression and privacy.

First and most obviously, child pornography is clearly not the right frame of reference for the majority of these cases. The specter of child pornography, rightly invoked in relationships marked by coercion, exploitation, and serious asymmetries of age and power, is too often applied to any situation involving minors and sexuality. Whatever legitimate concerns society might have about sexual activity among consenting teenagers of roughly the same age, they should be clearly distinguished from concerns about pre-pubescent sexual activity and sexual contact between adults and children. The fact that the consequences of a conviction for child pornography include lifelong registration as a sex offender illustrates how poorly suited child porn charges are for most sexting cases.

Thankfully, states have begun to move away from the knee-jerk use of child pornography charges in sexting cases, but the treatment of creators as equal to or worse than distributors persists in both legal and social responses to sexting. The most alarming feature of this equivalence is its erasure of the significance of consent. In the typical sexting scenario (I leave to one side what I would call “harassment sexting” and deal only with images that the creator reasonably believes are welcome) a minor makes a choice to reveal herself sexually to one other person. We may think her choice is unwise or unduly motivated by social pressure, but we must recognize that it is in any event a consensual sexual act (barring extreme youth or mental incapacity). By contrast, the person who distributes the image to other individuals acts not only without consent but most often with the full knowledge and intent that the creator will be humiliated by the distribution. Thus, the distributor engages in a non-consensual sexual act. There is nothing equivalent about consensual and non-consensual sexual acts –  the person who sends an image of herself to another person is not equally or more responsible than the person who takes that image and forwards it to hundreds of others. To hold otherwise is to engage in victim-blaming, whether the act in question is sexting or sexual assault. A civilized society recognizes that a person subjected to non-consensual sexual activity should not be scrutinized for what she wore, how much she drank, whom she flirted with, or whether she sent someone a sexual image of herself. The only proper and relevant question is whether she consented to the act in question.

The false equivalence between creators and distributors moreover rests on an implicit (and sometimes explicit) equation of privacy and secrecy. According to this simplistic and pernicious view, a person who exposes details about herself to another cannot complain when those details are subsequently exposed to many others. The idea seems to be that if one really does not want an intimate detail to be exposed to public view, one should never share that detail with anyone. To equate privacy with secrecy in this way is to justify virtually limitless exposure of every intimate detail of one’s life. There are very few aspects of life that are truly secret; most people have revealed their health status, personal transgressions, family history, or sexuality to someone at some point in their lives. This cannot mean that if those details are maliciously exposed to public view without our consent we can only hang their heads in shame for bringing it upon ourselves. As Justice Raymond Peters of the California Supreme Court wrote in Briscoe v. Reader’s Digest Association, the claim of privacy “is not so much one of total secrecy as it is of the right to define one’s circle of intimacy–to choose who shall see beneath the quotidian mask. Loss of control over which “face” one puts on may result in literal loss of self-identity and is humiliating beneath the gaze of those whose curiosity treats a human being as an object.”

Where there is hysteria about the creation of the “sext,” there is cynicism about its distribution. Glaringly absent in the hand-wringing about sexting is scrutiny of the distributors’ behavior. To knowingly expose a person’s intimate details without their consent is an act of malice. This is true whether the motivation is to embellish one’s sexual reputation, to take revenge after one’s advances are spurned or a relationship has ended, or to destroy a reputation through allegations of sexual promiscuity. Such an act demonstrates not only an alarming lack of empathy but a disregard for sexual autonomy, and contributes to the disciplining of sexual expression through shame and humiliation. In spite of this, the mass distribution of sexts is often treated as an inevitability. Those individuals whose lives and reputations have been destroyed by sexting are told they should have “known better,” as if the causal relation between sending an image to one intended recipient and its eventual delivery to hundreds or thousand of others is the same as standing out in the rain and getting wet. Given that so many sexting scenarios involve female creators and male distributors, the failure to examine and challenge the actions of distributors also perpetuates the gender double standard regarding sex. Girls must carefully regulate their sexual expression lest they be viewed as sluts; boys get a pass for their behavior because “boys will be boys.”

A recent New York Times article featured the story of “Margarite,” an eighth-grader whose life has been turned upside down following a sexting scandal. Margarite took a naked picture of herself in front of a mirror and sent it to her then-boyfriend, Isaiah. After they broke up, Isaiah (for reasons that are unclear) forwarded the picture to a former friend of Margarite’s, who forwarded it to everyone in her contact list after adding the text caption, “Ho Alert.” Those contacts forwarded the picture to their contacts, and so on, until nearly every student in the four middle schools in Margarite’s town had seen it. Soon Margarite’s cellphone was full of text messages – expressions of concern, warnings, and leers.  Margarite transferred to a school 15 miles away from her old one, but quickly discovered that the students there also had her image in their cellphones. Margarite struggled under the taunts of “slut” and “whore” from her new peers. To his great credit, the county prosecutor, Rick Peters, declined to bring charges against Margarite, but did charge the students responsible for disseminating her image (originally the charges were child pornography; he later amended them to telephone harassment). The media outcry that ensued focused not on the malicious actions of the distributors, or on Margarite’s daily struggle to obtain an education in the face of jeers, insults, and unwelcome sexual advances, but – predictably, tellingly – on the fact that Margarite was not charged along with the others. But perhaps the most depressing detail of all is the self-deprecating lesson that Margarite seems to have taken away from being subjected to sexual exposure and harassment for indulging in a romantic gesture. Asked what she would tell a student thinking of sending an intimate picture, she replied that if they feel “‘like, they’re not sure they should, then don’t do it at all. I mean, what are you thinking? It’s freaking stupid!'”

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4 Responses

  1. Patrick says:

    Isn’t relying on the concept of consent somewhat problematic when the law presumes that minors aren’t capable of legal consent? How do we reconcile these two concepts?

  2. The presumption of sexual non-consent certainly makes sense if we are thinking of pre-pubescent children or relations between a minor and a much older person or family member. It seems very strange, though, to maintain that teenagers can under no circumstances consent to sex with each other, or even to sexual acts not amounting to intercourse (such as sending racy pictures) with each other. I don’t think we really believe that a 16-year-old boy cannot consent to sex with a 16-year-old girl, or vice versa, whatever statutory rape laws might say. The presumption of non-consent in such cases is not only unjustifiably paternalistic, but it also leaves us no truly meaningful way to distinguish between a teenager’s seemingly voluntary sexual choices and clearly involuntary acts that might be imposed upon her. Creating and sending an intimate photograph of oneself (assuming that there was no coercion involved) demonstrates some measure of choice and control over one’s body; distributing that image without the creator’s permission clearly violates that choice and control.

  3. This is not in reference to the bulk of the post, but the reply to the “other Patrick” above:

    I do wonder about the notion of consent among young people (drawing lines here of course is notoriously difficult), not so much the questionable presumption of non-consent, but whether teenagers really have a clear conception of what “consent” fully means, legally and otherwise. Indeed, what counts for consent remains in some respects, I think, a tricky issue in general, at least on occasion and perhaps in more than just those cases we may describe as at the margins (or as ‘outliers). Several variables come into play here: consent involves a communicative act of “informing,” a speech act which is rather context-dependent (i.e., has both semantic and pragmatic dimensions), involving wants and desires, capabilities and expectations, assumptions and background (or implict and tacit) knowledge, and so forth. Informing is also, as Onora O’Neill reminds us, norm-dependent: “Unless speakers and audiences adhere to certain mutually accepted epistemic and ethical norms, and take one another to adhere to those norms, communication cannot succeed.” What about, for example, cases where the act of communication can not be described as clearly propositional or intentional, or is supplemented by inferences (say, about someone’s emotional state or attitude) by one party not wholly intended or anticipated by the other party? Informing can be, as O’Neill and others have pointed out, “referentially opaque” (in which case conventional semantic meaning may break apart from contextual or pragmatic factors that affect either speaker or hearer’s meaning). Beliefs held by the respective parties invariably affect the inferences drawn and this reminds us of how much hinges on the inferential abilities of the parties, upon those messy contextual factors (that fall under the rubric of ‘pragmatics’ in a technical sense and thus take us beyond reliance on what O’Neill, after linguists and cognitive scientists, term the ‘conduit/container’ metaphor of communicative acts that centers simply upon the idea of ‘transfer of content’).

    I realize this is all fairly abstract and I don’t expect these questions to be fully addressed here, but I wanted to at least raise them to the extent that we may unreflectively believe or routinely think (or at least I suspect we do so) we possess a clear understanding of what “the act” of consent entails, and all the more so among individuals who in terms of psychological maturity at least, are not adults.

  4. I can certainly relate to your skepticism about consent, Patrick (O’Donnell). But that’s largely because I’m skeptical about consent generally, with regard to both adults and children. In fact, I think that one of the problems in debates over issues such as sexting is the bright-line distinction between adults and children. The presumption that all adults are capable of informed consent and that no children are leads to some perverse results – e.g. when a 17-year-old prostitute is treated as a victim but a 19-year-old prostitute it treated as a criminal. I don’t believe that the answer to such oddities is to presume consent at younger and younger ages; rather, I think the answer is to maintain our skepticism about consent even as people cross the threshold from childhood to adulthood. To the extent that we are concerned, for instance, that a 15-year-old’s decision to send an explicit photograph of herself is not a fully informed decision, our concern should not be limited to her youth. Rather, we should be concerned (for example) about whether social norms selectively put pressure on girls and women to sexualize themselves in these kinds of ways, and whether this sexualization is in their best interest in the long run, especially given the double standard applied to female sexual expression.

    As a general matter, I think much of the consent that characterizes social interactions is questionable. Our society takes a very legalistic view of consent that often fails to take adequate account of the forces of social coercion and construction. Given that this is the case, I agree that children as a group are of course even more vulnerable and less informed as compared to adults. But that is exactly why we should sometimes be less alarmed by the things children do with each other: all children are consent-challenged to roughly the same degree within their peer group, as all adults are within their peer group. The further apart in age, experience, or power two people are, the more we should be concerned about the effect of asymmetrical consent. So it makes sense to be alarmed about, for example, sexual contact between a 30-year-old and a 15-year-old, given the great disparity in knowledge, experience, and relative social power. By the same token, we should be less concerned about sexual contact between two 15-year-olds.

    In any event, it’s quite clear that the furor over sexting is not driven by concern for the autonomy of the creators of the images. If this were true, we would treat the creators of the images more sympathetically than the distributors, which is the opposite of what tends to happen. And to reiterate the point I made in response to the first Patrick, characterizing all the actions of children as non-consensual erases a distinction of great importance: it treats a choice that at worst ultimately harms oneself (creating and sending an image of oneself) the same way it treats choices that hurt others (deliberately distributing that image to unintended recipients).