Debbie Nathan

( Almost all illustrations in this post, including the black-and-white nude, are computer generated and do not portray real people. Some virtual images are reproduced from work published by Dartmouth College Professor Hany Farid … see below for more about him.)

More of the latest sex-pol research and news: from studies of young people and sexuality, to Constitutional controversies about pornography record keeping, virtual vs. real child porn, and sex offender civil commitment law

According to a Nov. 11 Washington Post article, a new study from the University of Virginia finds that youngsters who have consensual sex in their early-teen or even preteen years are less likely to end up delinquent than those who lose their virginity later. In part, say the researchers, this could be because sexual relationships may offer an alternative to trouble.

Virtual clothing mannequins from H&M

The Virginia study will appear in the March 2008 issue of the Journal of Youth and Adolescence.

The study’s investigators acknowledge the dangers of having sex early. For example, young adolescents are less likely to use condoms than older people, which puts them at risks for STD’s and unwanted pregnancy. But, the researchers note, other nations mitigate these risks through sex education. Meanwhile, U.S. sex ed funded by the federal “abstinence only” budget must hew to a curriculum that links sex to delinquency, and allows no talk of birth control.

Speaking of America’s anti-sex-ed political culture, Advocates for Youth reports on its blog that the Democrats have been utterly craven lately. A recent report, from the Democrat-controlled Labor Health and Human Services Appropriations conference committee, includes the full $28 million increase requested by President Bush for abstinence-only-until-marriage-programs. “The Democrats have now granted the president and his anti-sex education zealots a whopping $141 million dollar budget for abstinence-only programs — something they could never achieve even under a conservative Republican Congress!” Advocates for Youth notes.

“Never mind the congressionally-mandated evaluation released in April showing abstinence-only programs have ‘no impact on adolescent behavior,’” Advocates continues. “Never mind the 2006 study by the Society of Adolescent Medicine which stated that these programs ‘threaten fundamental human rights to health, information and life.’ Never mind the 2004 report from Congressman Henry Waxman’s (D-CA) oversight committee demonstrating that 80% of abstinence-only programs contain ‘false or misleading information.’ Never mind the 13 governors who have refused abstinence-only dollars because they see no reason to use precious state dollars to match federal funds for programs that simply do not work.

“With one breathtakingly cynical move,” says Advocates, “the Democratic leadership has now stamped its brand on one of the biggest ideological boondoggles in congressional history.”

Meanwhile, the kids keep on trucking, doing who knows what? Do we really want to know? — God forbid, it might turn out to be boring! That’s the suggestion of yet another new study, of 18 to 24 year olds. It was reported on by Adult Video News (AVN) — the trade mag of the porn biz. According to AVN, which cannot possibly be happy about this, the research finds that young adults’ visits to internet porn sites over the past couple of years have been decreasing.

Visits to porn sites dropped from 16.9 percent of all site visits in the U.S. in October 2005 to 11.9 percent as of the same time this year. That’s a 33 percent decline.

Why the drop? Members of the Gen Y demographic, one researcher says, are increasingly hanging out in social networking sites. They’re probably “too busy chatting with friends to look at online skin.”

Of course, some young adults (not to mention their elders) are taking pictures of their own skin and posting the results to amateur porn sites, or just stashing the product in their sock drawers. Until this month, anyone who took photos or videos such as these was supposed to go through an elaborate legal process, defined by a federal law popularly called 2257. That process involves inspecting the models’ and performers’ IDs to confirm they’re over 18, making copies of the IDs, and keeping them on file for government inspection. But due to a recent higher court ruling, 2257 has just been struck down in several states.

For years, 2257 has taken up a lot of the adult porn industry’s time and resources. In addition, the law theoretically applies to amateurs – even to husbands and wives out to spice up their conjugal fun. As technology and law writer Declan McCullagh, of CNET, explains: Under 2257, “An adult couple taking a single erotic photo of themselves with a digital camera in their own bedroom is required to (a) inspect their own government-issued photo identification; (b) ascertain that they’re at least 18 years old; (c) photocopy their own IDs; (d) photocopy the erotic image; (e) file this information in physical form; (g) display the date and a street address “prominently” in their files; (g) open these files to agents of the Justice Department without advance notice. If they don’t take each of those steps, both members of the couple, according to the law, are subject to a federal felony–up to five years in prison, as well as fines.

Whew!

But in November, the 6th Circuit Court of Appeals struck down 2257, ruling that its record-keeping requirements are overly broad and violate Americans’ free-speech rights.

The ruling covers several states, including Tennessee. This is where one of the defendants uncovered by Kurt Eichenwald’s work on the Justin Berry case was doing business when he was charged with helping Berry run a porn website that contained illegal images of a 14 year old. The defendant, Timothy Richards, was charged with and convicted for crimes including violations of 2257. In his defense, Richards claimed he didn’t know that the 14 year old was underage, because Justin Berry posted a fake 2257 disclaimer, asserting that the model was over 18 and he had records to prove it. The government didn’t buy Richards’ claim about being duped by Berry. Neither did a jury.

Now, Richards plans to return to court to argue that his 2257-based convictions should be overturned.

Interestingly, documents that emerged this summer in legal actions related to Richards’ case indicate that then New York Times reporter Eichenwald was using privileges as an administrator on the same illegal site that Richards was helping Berry operate – the one with the 14-year-old porn model (for details, see here, here, and here). According to his own statements, Eichenwald was involved in this child porn administrative role as a “private

Sex offender demographics map

citizen,” not a reporter doing research.

Because of the 2257 violation, he is theoretically also subject to being criminally charged — just as Tim Richards was. Earlier this year, a DOJ prosecutor and an FBI agent attended a court hearing related to Eichenwald’s involvement with the site, but would not say if he was being investigated. (Just after that hearing, Eichenwald retained a criminal defense attorney.)

Now, with the 2257 requirement overturned in Tennessee, anyone residing there who’s in Eichenwald’s shoes might breathe a little easier. On the other hand, Eichenwald lives in Texas, a state not currently subject to the circuit court ruling that overturned 2257. Time will tell whether 2257 is overturned nationwide.

And speaking of child porn laws – this is a little dated, in October October the New York Times interviewed Hany Farid. He’s a Dartmouth College professor who tries to do quantitative analysis to figure out whether photographs have been altered. Discussing his work (click here to see some), Farid remarked that he has “been an expert witness in several child pornography cases.”

Back in 2002, the Supreme Court ruled that possession of computer-generated child porn is protected under the First Amendment because it doesn’t depict real children, but instead is built by morphing adult bodies to look younger, or it’s made completely from scratch.

Images of children in sexual poses are repugnant to most people, to put it mildly. But so are many other images we all are legally permitted to view. (Personally, I get especially sick when I see pictures of sexual assault from Abu Ghraib, or the photo of the naked little girl running from the napalm attack during the Viet Nam war.) Those items are protected speech – covered by the First Amendment. Child porn is not protected because traditionally, in order to create the material, sex crimes have been perpetrated against real minors. The images would otherwise not exist. Child porn was outlawed to discourage manufacture of a product that’s predicated on actual minors being made to perform sexually — when by legal definition they cannot consent to such acts. The reasoning may be arguable to First Amendment absolutists. Still, it’s serious reasoning.

But what happens now that we’ve got technology to make “virtual” images of people, even children, doing anything — even sex? In other words, what happens when kiddie porn contains no kids?

It’s possible to produce fake but real-looking images, Farid told the Times. And now defendants in child pornography cases – particularly when they involve material from the internet – are arguing that what they got caught with is virtual. Which would make it not illegal. The government has the burden of proving otherwise.

“So now in these cases,” Farid continued, ”defense lawyers will sometimes argue that the images aren’t real. So far, I have only testified on the side of the prosecution.”

What Farid and the Times omitted is that a judge in at least one child porn prosecution has rejected Farid’s work and deemed it unreliable. CNET’s McCullagh reported several months ago about Massachusetts resident Rudy Frabizio. He was indicted after his employer found sexually explicit images on his computer that appeared to involve minors.

When Fabrizio contested the government’s claim that all the images portrayed real children, the FBI contacted Professor Farid and asked him to run one of his analysis programs on the porn. But Frabizio’s lawyers discovered that Farid’s program had a 30 percent error rate. The program often classified a real photo as computer generated. It also classified a cartoon image as real.

The government opted not to use Farid as a witness and tried to replace him with an FBI agent who said he could tell which imagery depicts real children, versus which is fake, simply by looking.

U.S. District Judge Nancy Gertner rejected that claim. “In a world of rapidly changing technology,” she ruled, “where the availability and use of Photoshop and other, similar programs is widespread, substantial evidence suggests it may be possible to digitally create or manipulate photographs in a manner the naked eye cannot detect. The government has not shown otherwise.”

What we have here is terra that’s mostly incognita, in which we need to think and rethink our child porn laws. How do we protect real children from sexual exploitation, while also protecting free speech as much as possible? To figure this out, lots of questions need to be answered. But first, they have to be asked. And that can be unpleasant.

For instance, all those people who want to see child porn: can they be sated by looking at virtual imagery that doesn’t exploit actual kids? Or must they have “reality” to feel happy? (This is dark variation on the same question television and Hollywood execs happily mull when it comes to mainstream media desires. Witness the public’s fascination with “reality TV” and with trying to tell the difference between “truth” and mere “acting.” In response, witness also the mainstream’s ever more sophisticated attempts to play tricks with our perceptions…often to our great delight.) (By the way, the graphic to the left does represent a real person, a suspected sex offender. Interpol puts scrambled images such as this on the Net, with an unscrambler code to facilitate identification and apprehension of the suspect.)

We don’t know much about people who harbor fantasies about sex with minors. What in the world goes on in their heads? We don’t know what percentage act their fantasies out criminally, versus how many just keep everything in their imagination. If it were to turn out that most do the latter, then — creepy as it sounds to the rest of us — it might do the world some good to give them fantasy images in which no real children are victimized.

But if any kind of image, even virtual, tends to provoke illegal sexual behavior against minors, we would want to seriously consider outlawing even fantasy material.

The problem is, we don’t know what’s what. There’s little research on the psyches or behavior of adults who are sexually attracted to minors (prison studies hardly count: incarcerated populations are notorious for telling researchers what they think they’re supposed to say, instead of what’s the truth).

Instead of high dudgeon and moralism, we need more and better research about people who are sexually attracted to those much younger than they, and what makes them tick. Until we know better, we won’t be able to help adults stay away from children And children will remain at unneeded risk for exploitation.

Professor Farid’s work has been funded by the federal government. No doubt he’s back at the drawing board.

Sex offender “buffer” map of Iowa City, computer generated

The rest of us should be, too. We should be pressuring the feds to fund scientifically sound, critical inquiry into human sexuality.

Don’t hold your breath. Let it out and let’s revisit the sex offender civil commitment controversy. The government was back in court in November in North Carolina, opposing a judge’s September ruling that sex offenders can’t be held in federal prison after they’ve served their sentences.

The ruling responded to a court order handed down on behalf of five convicts incarcerated at a federal sex offender prison. The feds said they were “sexually dangerous” and therefore needed to be civilly committed in mental hospitals – possibly for the rest of their lives. Civil commitment was approved under the federal “Adam Walsh” law, enacted last year.

But the judge said that to commit a person indefinitely, the government would have to prove beyond a reasonable doubt that he or she is “sexually dangerous.” In an earlier order, the judge wrote that “there is serious question as to whether the federal government could ever prove beyond a reasonable doubt that an individual is both suffering from a mental illness or abnormality such as pedophilia and unlikely to refrain from sexually violent conduct in the future as a result of that illness.”

For now, the ruling affects only eastern North Carolina. But there’s a big prison there for sex offenders, Butner. It’s one of only a handful of such federal facilities in the nation.

Meanwhile, an inmate strike and protest is going on at a similar place in California. Sex offenders who’ve been civilly committed to a state hospital for sex offenders in Coalinga have been refusing food and engaging in other civil disobedience since the summer. According to a long article in the Los Angeles Times, they’re complaining of lack of psychotherapy services; many also feel it’s unconstitutional in the first place to be locked up after serving their prison time.