Revenge Porn by Teens in The United Stat
Revenge Porn by Teens in The United Stat
Revenge Porn by Teens in The United Stat
Introduction
1 Debarati Halder is an Advocate. She is the Managing Director of Center for Cyber
victim Counseling, India (www.cybervictims.org) and the Vice President of Kids and
Teens Division, Working to Halt Online Abuse, USA (www.haltabuse.org). She has
received her Ph.D from National Law School India University (NLSIU), Bangalore. She
can be contacted @ [email protected] Uri: www.debaratihalder.co.nr.
2 K. Jaishankar, PhD, is a senior assistant professor in the Department of Criminology
and Criminal Justice at Manonmaniam Sundaranar University in Tirunelveli, Tamil Nadu,
India. He is the founding editor-in-chief of the International Journal of Cyber Criminology
and editor-in-chief of the International Journal of Criminal Justice Sciences. He is the
founding president of the South Asian Society of Criminology and Victimology (SASCV)
and executive director of the Centre for Cyber Victim Counselling. He can be contacted
@ [email protected] Uri: www.drjaishankar.co.nr.
3 Liz Thomas, "Quarter of under-Lis signed up to social networking sites despite age
restrictions," published on March 27, 2010 in Mail Online. Available @ http://www.
dailymail.co.uk/news/article-1260993/Quarter-13s-signed-social-networking-sites.html.
Accessed on 19.10.11
4 Id.
86
accounts in the virtual space, children often own mobile phones equipped
with all modem gadgets like the inbuilt camera, MMS and SMS systems,
apart from modem speaking and hearing devices.
Apparently, the kids of the internet era are different from kids of pre
internet era. This situation can be attributed to two major factors; viz.,
(i) Easy availability of the digital gadgets, and (ii) the home atmosphere,
wherein almost every child from the middle and upper class families are
now accustomed to see their parents, as well as grandparents embracing
the digital communication medium and the internet. As such, the maturity
level of the children has been highly influenced by this gradual change
of social usage of digital communication modes. Children below 18 have
taken to SMS texting, emails, internet chatting and cyber socializing for
connecting with their school friends and also for dating. This is not an
uncommon phenomenon in countries like India where social norms and
value system are more orthodox than that of the US. 5 However, like
adults, children could neither escape the perils of digital communications.
They present the potential group of victims of the adults, as well as the
children of their own age group. In this paper, we emphasize on the abuse
of self produced audio-visual clippings and still photo images of the girls
by boys for the sake of revenge. We intend to expand the scope of the
term "self produced" where it will not only cover sexted" images, but
also consented video clippings and images that may have been captured
by the teens when in a compromising position, and thereby stored in the
electronic devices like the mobile phone, personal computer, ipod etc.
Nowadays, humiliation through revenge porn in the cyber space
against ex-girl/boy friends has become rampant. Revenge porn is often
adopted by individuals who are 'dumped' by their ex-partners. Such indi-
viduals could be adults, and also teens. While adult victims can seek
justice by regular court process, when both the perpetrator and the victim
are children, it becomes quite difficult for the law and justice administra-
tion to mete justice to the victim as well as the perpetrator. Revenge porn
5 Debarati Halder, & Jaishankar Karuppannan "Cyber Gender Harassment and Secondary
Victimization: A Comparative Analysis of the United States, the UK, and India," Victims
& Offenders, 6:4, 386-398. (2011):
6 Sexting is self photographing nude body or body parts and sending to others, as well
texting obscene words to known persons (in most cases) using mobile phone. K. Jaishan-
kar "Sexting: A new form of victimless crime." International Journal of Cyber Crimino-
logy, 3(1), January 2009,21-25. (2009).
87
stands apart from all other modes of internet harassment as the victim
would have participated in the whole malicious cycle through various
amorous activities which may be used by the perpetrator to create the
harassing audio video clippings. While the accused may get the whole
limelight in the course of investigation and prosecution, the victim may
go through acute trauma due to the compounded effect of the huge humil-
iation created due to the revenge porn, breach of trust as well as unwanted
ruffling up by the police and the courts.
Revenge porn typically includes two sorts of porn contents; viz., user
generated content and user adopted contents. Both sorts of contents may
include various other infringements of privacy issues, which aides to
fulfil the aim of the perpetrator, viz., severe defamation of the victim.
In such case, questions may arise as how far the children can enjoy
the protected speech guarantee? Do sexting and consented capturing of
compromising scenes open the platform for good defence for distributors
of such stored data ? We intend to examine this issue on the basis of two
judgments, both from the US courts, viz., New York vs. Ferber' and the
2011 Kentucky case involving a 14 year boy for sexting."
Further, this paper expands its discussion on the liability of the web
platforms for supposedly encouraging minors to tum into predators. It
may be noted that both Google and Facebook allow children from the
age group of 13 and above to open accounts with them. Other social
networking sites like MySpace also follow this policy. While this gives
them an easy platform to vent out their anger and frustration to others,
revenge porn through cyber space also raises the question of approach-
ability of adult sites by children under the age of 18. The web platforms
are immune by Section 230 of the DMCA. But does this immunity induce
the children to become offenders at tender ages?
This paper aims to address number of issues involving privacy, offen-
sive speech, child pornography, the liability of the parents and also the
ISPs; and above all, the treatment of the super intelligent minor offenders
by the courts. This paper is divided into four parts; the first part will deal
with revenge porn by teens. This part will highlight the possible usage of
stored data for online revenge by teens and the typology of revenge porn
by teens. The second and third part will deal with the judicial philosophy
from the US and Indian perspectives regarding misuse of sexted as well
as other data which may have been stored with the consent of the victim.
For this, we have taken up two cases, viz., the 2001 case of Airforce
Balbharti school boy, who created porn websites with the pictures and
information of female students of his class and female teachers of his
school; and the 2004 Delhi DPS MMS case. The fourth part deals with
the role of Therapeutic Jurisprudence in the management of revenge porn
by teens. The paper ends with a conclusion which also provides some
recommendations.
1. Overview
The terms 'revenge' and 'revenge porn' have been used with reference
to cyber victimization mostly to indicate victimization of adult women?
in the hands of their dating partners or cyber acquaintances in the forms
of creation of untrue, ugly and sexually provocative profiles in the inter-
net. The most common mode of creating revenge porn is to use the per-
sonal information and the photo of the victim, which mayor may not be
doctored, and uploading them in various cyber portals to spread the mes-
sage that the victim is available for the sexual gratification of men. Even
though the original porn sites and various social networking portals
including the popular ones like the Facebook etc., strictly transfers the
onus on the users to contribute only genuine data which does not harm
the rights of the others.!" various examples of violating this very guide-
9 See pgs 24, 27, 32, 42, 47, 48 in Debarati Halder and Jaishankar Karuppannan "Cyber
crime and the Victimization of Women: Laws, Rights, and Regulations". Hershey, PA,
USA: IGI Global. ISBN: 978-1-60960-830-9 (2011); also see Mary Anne Franks, "Unwil-
ling Avatars: Idealism and Discrimination in Cyberspace." Columbia Journal of Gender
and Law, Vol. 20, p. 224, (2011). Available at SSRN: http://ssrn.com/abstract=1374533;
Ann Bartow, «Pornography, Coercion, and Copyright Law 2.0» Vanderbilt Journal of
Entertainment and Technology Law 10.4: 101-142. (2008). Available @ http://works.
bepress.com/cgi/viewcontent.cgi? article= 1030&context=ann_bartow
10 See Facebook rules regarding safety, available @ https://www.facebook.com/terms.
php
89
Online revenge porn differs from the traditional concept of cyber porn in
the sense that the perpetrator intentionally misuses the information about
the victim to bring in emotional distress to her. Revenge porn aided by
sexting and other non sexted victim aided stuff, is also a perfect way to
create huge defamation for the victim. In cases of defamation resulting
from sexting the whole cycle can be expressed by the diagram below:
As the diagram above suggests, the whole cycle involves four major
steps; viz.
1. the victim captures her nude / semi nude picture in her mobile phone
or consents for capturing her compromising position with the partner
through mobile phone camera or webcam and sends it to her chosen
partner and the partner stores the image/clipping in his device;
2. The partner may transfer the clipping to his friend(s) because he wants
to humiliate the girlfriend as a revenge taking measure.
3. The partner himself or the friends, who are the secondary recipients,
may then upload the clippings in the internet.
4. The clipping rapidly captures millions of viewer's attention, who may
have watched the clipping, and the original creator may become a 'sex
item' and her reputation is severely damaged.
12 See Ann Bartow, "Pornography, Coercion, and Copyright Law 2.0" Vanderbilt
Journal of Entertainment and Technology Law 10.4: 101-142. (2008). Available @ http://
works. bepress.com/cgi/viewcontent.cgi?article= 1030&context=ann_bartow
91
Revenge porn in the cyber space can be divided into two main types,
viz., (i) camouflaged porn; (ii) teen porn.
Such sorts of porn images may contain user generated'? and also user
adopted contents. The first category of contents may include storing
visual images of the victim, which may have been supplied by the victim
to the perpetrator. These contents could be sexted messages, email photo
attachments, stored pictures which are captured from online video chat
sessions, or even victim consented pictures which are taken by the
perpetrator of the victim. User adopted content category may include
doctored pictures of the victim, stolen images of the victim etc. Such
content may be uploaded in popular social networking sites like Face-
book, Orkut, Myspace, Bebo etc.
These typical camouflaged porn's could be created by teenage boys in
the above mentioned social networking sites (SNSs ') in the regular fash-
ion as other profiles are created. However, the difference remains in the
originality of the information provided therein and the motive behind the
creation of the same profile. The profile may thus contain a profile pic-
ture which belongs to the victim; the profile name which may depict the
victim; it may contain album which may contain the sexted, as well as
non-sexted captured pictures which may depict the victim in semi nude
or scantily clad dress. The profile may hugely impersonate the victim as
a girl ready for soliciting men of different age group. We term it as 'cam-
ouflaged porn' because such profiles apparently do not violate the rules
and policies of these social networking sites prima-facie, as are in cases
the regarding child pornography and they are camouflaged under the
disguise of first amendment protection. It must be noted that all the
SNSs' emphasize on the issue of child pornography from the perspective
of child abuse and grooming the child for either offline abuse or online
sexual gratification.l" Of late Facebook has turned the highlight towards
13 George, Carlisle E. and Scerri, Jackie, Web 2.0 and User-Generated Content: Legal
Challenges in the New Frontier. Journal of Information, Law and Technology, Vol. 2,
2007. Available at SSRN: http://ssrn.com/abstract=1290715
14 See the Facebook terms on Safety @ https:llwww.facebook.com/tenns.php?ref=pf
Also see Justin, You Received a "Sext," Now What? Advice for Teens, February 22,
2011, http://cyberbullying.uslbloglyou-received-a-sext-now-what-advice-for-teens.html
92
sexted messages from the perspective of bullying.'? But few have high-
lighted the issue of using of sexted messages or stored messages for
creating impersonated profiles which present the characteristics of cam-
ouflaged porn.
Camouflaged porn can be created further by circulating the stored data
to others through emailsorSMSs.This is the most common form of
creating revenge porn by teens. Even though this deviant behaviour has
been highlighted by many scholars from the perspective of infringement
of privacy and it is not dealt from the perspective of creation of teen porn.
Such sorts of porn are generally found as one of the various categories
of porn that are exhibited in adult websites. Nonetheless, these websites
showcase safety shields to be protected by the immunity clause of Sec-
tion 230 of the Communication Decency Act, codified at 47 USC, which
provides immunity for all types of materials that may attract liability of
the website!" through the routine announcement that the porn models are
professional models who have consented for such performances; the
viewers must certify that they are above 18 and therefore legally eligible
for viewing the sites; and by the immunity clause provided by Title 512
of the Digital Millennium Copyright Act 17 which states that the con-
tributors must not violate other's rights by infringing the copyrights and
privacy of others etc. But the minute analysis of the policies as well as
the mode of execution of these sites may present a different picture. Such
sites present a possible platform for the teens to execute revenge over
split affairs with the help of stored data like the sexted messages, and
pictures. Such porn differs from camouflaged porn especially because the
contributor openly declares his intention to tag the clipping as a porn
clipping and showcase the victim as a true porn model.
See https://www.facebook.com/safety/tools/
15
See in general Digital Media Law Project, Immunity for online publishers under the
16
Bartow!" has addressed the issue of revenge porn from the perspective
of copyright violations; even though Bartow has made a crucial observa-
tion in this reference in regard to revenge porn involving women, her
observation stands right for teen victims as well. However, we argue that
revenge porn by teens must also be seen from the perspective of indi-
vidual liability of the perpetrator as well as the victim. As we have men-
tioned above, revenge porn can involve sexted messages, captured pic-
tures of the victim, as well as self attached non-sexted pictures of the
victim. A couple of years back, when the US federal and the provincial
governments started addressing sexting as a new form of self created
child pornography!" scholars including us researched on the possible
alternative resolution to the issue other than criminally prosecuting the
creator-sender and the recipient as well.I" But it must be remembered that
the courts only executed the inherent philosophy of child pornography
prevention laws in cases where both the deviant teens were prosecuted.
The courts basically wanted to show that the creation and distribution of
any material which depicts children in any fashion that creates erotica,
must be prohibited to safeguard the interest of the children and this has
to be carried out even when the act is done as a part of self sexual grati-
fication by adolescent teens. Arguably, this approach of the US courts
could be criticized as many have rightly pointed out that laws meant for
protection of children are being used to punish the children for modem
age adolescent behaviour.
Notably, the courts' understanding of the subject stands right when the
image or clipping meant for private viewing, are distributed to third party
for public viewing. But the details of almost all these cases would show
that the secondary 'distributor', who is the primary recipient, did not
distribute the data for taking revenge. Therefore the motive was not
18 See Id @ 10
19 See pg 491 in Mary Leary, "Sexting or Self-Produced Child Pornography? The
Dialogue Continues - Structured Prosecutorial Discretion within a Multidisciplinary
Response." Virginia Journal of Social Policy and the Law, Vol. 17, No.3, Spring 2010;
CUA Columbus School of Law Legal Studies Research Paper No. 2010-31. Available at
SSRN: http://ssrn.com/abstract= 1657007
20 Debarati Halder, & Jaishankar Karuppannan. "Sexting among Teens: An analysis
on the Questions of Legalities and Illegalities." Unpublished paper in the personal file.
94
criminal, but purely adolescent fun. However, in revenge porn the motive
is essentially to defame the victim and therefore it is criminal. Now the
question is; could a 'child' be prosecuted for harbouring a criminal inten-
tion and executing the same by a law which is meant for matured people?
The question could be analyzed in the light of two famous cases, namely,
Ferber's case and the ongoing Kentucky sexting case. It must be noted
that none of these cases deal with revenge porn by teens. But we will
apply the philosophy of these judgments to analyze whether execution
of the anger with the help of the victim aided materials can claim the
protected speech guarantee under the first amendment guarantees, and
whether the laws meant for protecting the child, can be used to prevent
the child from performing such acts which will harm another minor.
The stand of Ferber's: The Ferber's case dealt with the question as
whether the decision in Miller case?' can be stretched to cover child
pornography. Ferber's case established the fact that child pornography
will not fall under the protected speech guarantee even when the princi-
ples of contemporary communal standards are applied as had been the
case with the test of obsccnity.F But it must be noted that Ferber has
addressed child pornography only from the perspective of child sexual
exploitation and child abuse by adults. Further, the case essentially dealt
with five core aspects of child pornography, viz.
sexual exploitation of children;
sexual abuse of children through the visual depiction of children
performing sexual acts;
individual liability in causing the sexual exploitation of children by
creating the child pornography;
individual liability in causing sexual abuse of children by distributing
it to public;
Promoting child pornography for monetary gain.
Antonio Mortez Haynes. "The Age of Consent: When is Sexting No Longer Speech
22
Incident to Criminal Activity" Cornell Law Review, Vol. 97, No.2, 2012. Available at
SSRN: http://ssrn.com/abstract=1744648
95
27 Available @ http://www.law.comell.edu/uscode/18/usc_sec_18_00002256----000-.
html
28 Tom SR Hester. "N.J. law makes juvenile 'sexting' an educational issue, not a
crime".NEWJERSEYNEWSROOM.COM on 27th September, 2011.
http://www.newjerseynewsroom.com/state/nj-Iaw-makes-juvenile-sexting-an-educatio-
nal-issue-not-a-crime
29 See SENATE,No.2700,State of New Jersey 214th Legislature, introduced February
17,2011. Available @ http://www.njleg.state.nj.us/2010/Bills/S3000/2700_Il.HTM
96
who are charged for the first time with criminal offence for posting sexted
messages. Understandably through this legislation, both the creator-sender
as well as the recipient in teen sexting case would be spared from harsh
punishments which may term the teens as sex offenders. However when
the recipient teen, or the one who has private pictures stored in his device,
breaks the innocence" and circulates it for fulfilling his revenge, he may
not get the privilege as this forthcoming law proposes.
Kentucky case: The changed judicial approach post Ferber's: The Ken-
tucky sexting case involving a 14 year old boy needs a mention here. This
case does not involve revenge taking through victim aided stuff.
The accused, a 14 year old boy had allegedly distributed a sexting video
clipping, which the creator-sender alleged, was made under coercion of the
accused. The victim's lawyers pressed for the application of Para 8 of
18USC§2256 to charge the accused guilty of child pornography. When the
defence pressed on the fact that the accused is a minor and that the accused
has violated no law, the judge stated that the said law applies to 'all' irre-
spective of their age. It was further highlighted that children of this age
group can also step in the shoes of child sexual exploiters especially when
the victim was coerced and induced to make the sexting video."
Both Ferber and the Kentucky case therefore established the fact that
when the substance presents a situation which cannot have any social
value, it may not claim the protection of the first amendment guarantee.
Understandably, publishing with an ill motive, of a still image, or audio
visual clipping of the sexual performance of a teen, which was meant
strictly for private viewing of the recipient, therefore do not protect the
wrongdoer from the category of unprotected speech. It must be noted that
in the earlier convictions in the sexting cases, the prosecution proved that
the wrongdoer teen circulated the sexted image among his friends with
no ulterior motive or intention or even knowledge that it may create
permanent reputation damage for the original creator-sender of the sexted
messagc.F However, revenge porn largely differs from this. The wrong
doer knowingly circulates the sexted message or the stored images of his
victim by breaking the promise of confidentiality to create harm to the
30 By the term "innocence" we aim to denote the absence of prior knowledge of future
harm of the sender.
31 See Id @ 6
32 Id @18
97
victim. Probably this is the core reason that revenge porn by teens aided
by victim supported material needs a special legal treatment which may
stand apart from regular sexting cases or even child pornography cases;
and in such cases, we refuse to accept the US trend of categorizing the
offending teen as a "sex offender't" as has been done in previous cases
where teens got involved in creating or distributing images showing
sexual organs or performing sexual activities. The issue needs to be dealt
with from the perspective of privacy and confidentiality and the respon-
sibility of the teens in upholding the inherent philosophy of the fourteenth
amendment essentially, coupled with abuse of First Amendment Guaran-
tees. This is especially so because US may set a universal trend to deal
with such cases which are generally followed by other countries includ-
ing India.
1. Overview
In India the very first reported case of teen revenge in the cyber space
came out in 2001 34 when a 16 year Delhi school boy created a porn
website and posted porn images of girls of his own class and of the teach-
ers with lewd remarks, publishing in detail about their sexual preferences.
The reports suggest that he did this as revenge to these girls who used to
taunt him. The boy was arrested under Section 67 of the erstwhile Infor-
mation Technology Act 35 for charges of obscenity in the cyber space and
33 See Id @ 21
34 See TIMES INTERNET NETWORK Confusion prevails over tackling cyber
crime, May 22, 2001 http://timesofindia.indiatimes.com/city/pune/Confusion-prevails-
over-tackling-cyber-crime/articleshow/409953300.cms
35 This provision stated that "Whoever publishes or transmits or causes to be published
in the electronic form, any material which is lascivious or appeals to the prurient interest
or if its effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained or embodied
in it." The adjacent part pf the provision prescribed punishment which would be impri-
sonment for a term which may extend to five years and with fine which may extend to
one lakh rupees and in the event of second or subsequent conviction with imprisonment
of either description for a term which may extend to ten years and also with fine which
may extend to two lakh rupees. However, the Information Technology Act was sub-
sequently amended and the amended version came into life in the later part of 2009. The
amended version deals with child pornography under section 67B. The Act can be found
in http://www.cyberpolicebangalore.nic.in/pdf/it_amendment_act2008.pdf
98
later was released on bail by the juvenile court. The extreme punishment
came when he was allegedly rusticated from the school. This case drew
huge attention of the media, the public, the law researchers and also the
police as this was the first ever case of teen revenge through cyberspace
in India. The generation of web 2.0 had literally outsmarted the older
generation and created this peculiar trend which was later followed by
many adults to execute their revenge. This is evident from the search
results in the internet with key words as 'revenge porn', 'Porn India',
'India teen porn' etc. The numerous results may also include various porn
websites created under categories such as 'Indian Desi Girl', 'South
Indian Mallu' etc, apart from YouTube videos with similar tag words.
Nonetheless, the case sets precedence for many other teens to execute
their revenge through various websites which can be accessed by teens
below 16 years, predominantly by the popular social networking sites.
However, before discussing the legal treatment of these issues, an analy-
sis on the Indian socio-economic condition with regard to sexting is
essential here.
Sexting or consensually digital capturing of the private moments of
two teens of different sexes, or sending pictures of oneself with scanty
attires through video chats etc are new age behaviours for Indian teens.
The social culture of average Indian societies predominantly barred the
parents to allow the children to wear revealing "western dresses" which
may show too much of the skin. However, the situation rapidly changed
since the introduction of new age movies," huge display of usage of
electronic devices like mobile phones, desktop as well laptop computers
in the popular movies and TV serials meant for teens and young adults,
and the gradual lowering of the prices and easy availability of these
devices for household purposes and easily available broadband services.
The web 2.0 era children are now used to see both the parents occupied
with their digital devices for their own professional as well as personal
purposes. The internet accessibility changed the orthodox mindset of
Indians and this resulted in change in formal dress code to exclusive teen
hangouts, to even the approach towards the sex education at homes and
36 This was suggested by one anonymous individual who made a comment to the lead
author's blog "Be aware of online mischief mongers", can be found @ http://debaraticy-
berspace.blogspot.com/2011/10/be-aware-of-online-mischief-mongers.html#comments).
99
37 We have discussed about the issue of sex education in schools in India in the later
part of this paper.
38 From the personal experiences as Directors of the Centre for Cyber victim Counse-
ling (www .cybervictims.org), we have seen that this tendency is growing among the Indian
teens.
39 Express News Service "Sex scandal: Boy who shot MMS clip held". Express India.
December 19,2004. Available @ http://www.expressindia.com/news/fullstory.
php ?newsid=39787
40 Basharat Peer, Student accused in porn website case secures Bail. Published on April
30,2001 in http://www.rediff.com/news/2001/apr/30porn.htm
100
resolution AIRES/ 51/162, dated 30th January 1997; the police was left
much in awe of the nature of the crime as that was the first of its kind in
India. The boy was released on bail by the Juvenile court, Delhi. 4 1 Justice
Sanjay Agarwal, who granted bail to the accused, noted that this is an
"example of tech -graffiti" and it should "not be taken seriously" .42 But
he was proved very much wrong. Next, when the students of Delhi Pub-
lic School were caught circulating the compromising position of their two
classmates in 2004 by the school authorities, and the clipping was even
found on the internet for a larger audience, the police immediately applied
Section 67 of the Information technology act along with sections 292 of
the Indian Penal Code to arrest the key person, a boy of 17, who had
allegedly captured the sexual act along with the girl. The arrest was made
after two more high profile arrests, involving the CEO of Bazee.com,
Avinash Bajaj, who allegedly bought the clipping to circulate it through
the website, and one Raviraj, a student of Indian Institute of Technology,
Kharagpur, who allegedly sold the clippings to Bazee.com, an auction
site. While section 67 of the erstwhile Information Technology Act, 2000
dealt with publishing, transmitting, causing to be published any obscene
material in the electronic form; section 292 of the Indian Penal Code
prescribes punishment for selling, publishing, distributing, importing or
exporting, making a monetary profit of, or advertising for obscene
materials," section 294 prescribes punishment for obscene acts and songs
in public.r' Even though the CEO of Bazee.com (which was later sold to
eBay) challenged the Delhi High court judgment" that quashed the Penal
code provision against him, but permitted prosecution under the Provi-
sions of Information Technology Act, on the ground of lack of clarity of
41 Presently Juvenile court is substituted by Juvenile Justice Board after coming into
effect of the Juvenile Justice (Care and Protection) Act, 2000. for more details see http://
delhicourts.nic.in/JUVENILE_JUSTICE_BOARD.htm
42 These comments were published in the news report that covered the hearing. See Id
@ 37
43 Section 292 (2), Indian Penal Code prescribes punishment with imprisonment of
either description for a term which may extend to two years, and with fine which may
extend to two thousand rupees, and, in the event of a second or subsequent conviction,
with imprisonment of either description for a term which may extend to five years, and
also with fine which may extend to five thousand rupees.
44 Sections 294 of the Indian Penal Code, 1860, prescribe punishment with imprison-
ment of either description for a term which may extend to three months, or with fine, or
with both.
45 See Avinash Bajaj v. State, available @ http://www.indiankanoon.org/doc/309722/
101
section 67 in reference to his case and due diligence of the website ;"
there were no further news about the prosecution or the post prosecution
treatment of the main accused, the 17 year old student, except that he was
suspended from the school.
As it could be seen, in both these cases, and especially in the latter
case, the court highlighted the monetary gain for adults out of the clip-
ping that was made depicting private sexual moments of two adolescent
teens; and later focused its attention more on the issue of distributing
pornography by an adult, i.e. Bajaj. In the earlier case, the judge waived
off any 'seriousness' to the issue of the motive of the wrongdoer. Pre-
dominantly that may have affected the legal treatment of the offender
teen in the later case. This can be largely attributed to the traditional
Indian mindset towards the offence that could be done by the children,
treatment of child offenders"? and lack of constitutional guarantees
towards privacy rights of the children. Since the independence, the Indian
parliament has been busy in safeguarding the rights of the children in
relation to basic education, food and shelter and health." Through Juve-
nile Justice (Care and Protection) Act, 2000, this right has been broad-
ened to cover abuse of children. Accordingly, the Indian laws have
started to see the offences done by children more from the perspective of
how and why they are being used for the criminal gratifications of the
adults. Misuse of digital knowledge by children had remained largely
ignored by lawmakers until the implementation of the Information
Technology Act, 2000(as amended in 2008) and later the Protection of
Children from Sexual Offences Act, 2012. But neither these novel law
46 See DPS MMS scandal: SC stays proceedings against eBay, its chief, Press Trust
Further, in India, unlike the US, rarely any legal highlight has been
focused on adolescent teen's sexual behaviours. Adolescent sexual
behaviours like self sexual gratification.P kissing or even dating opposite
sex partners are considered as a taboo, still now in many parts of India.
However, at the same time, teens are turning to the internet for such
apparently normal sexual habits at an alarming rate. This could be largely
attributed to two factors; (i) in the internet, there is hardly any parental
supervision, especially when teens use popular social networking sites;54
and (ii) the sites that teens favour to frequent, like the Facebook, Orkut
etc, have lowered the minimum age criteria to 13,55 which encourages
elder teens to experience something which in reality is forbidden. How-
ever, measures have been taken by the state governments to curb chil-
dren's usage of digital devices, especially the mobile phones inside the
school premises since 2007 on the ground of health hazards and the sup-
posed "nuisances in the classrooms'P" that may be created by the mobile
Presently, this order is effective in almost all the schools in India, and
predominantly, this is the only measure to curb revengeful activities
through digital devices by school going teens. As the news reports sug-
gest if a teen is caught violating this rule, he could be severely warned,
or fined or even rusticated depending upon the school's internal policies.
We argue that this cannot be the solution for this problem. Since India
has witnessed two incidents which probably had created huge effects on
the teens, it cannot be ruled out that adolescent students will not fall upon
safer platforms like that of the internet communication systems, including
social networking sites. This is more so because these web platforms are
guided by US laws, which may help the child from India to execute his
anger, frustration and revenge swiftly and not be caught under the legal
60 See Id @ 17
61 See S.67B of the Information Technology Act,2000(amended in 2008), available in
http://www.cyberpolicebangalore.nic.in/pdf/it_amendment_act2008.pdf
62 See S.ll(ii) of the Protection of Children from Sexual Offences Act, 2012.
63 See S.ll (iii), Id.
64 See S.ll(v) Id.
105
to three years, as well as pecuniary fines. But neither these provisions are
properly used against any offending teen still now. As it could be seen,
lawmakers may not have been ready yet to confer such serious punish-
ment as has happened in the US, for wrong doer teens, but time has
definitely ripened to think about punitive steps for wrong doer children
which may safeguard the inherent essence of digital privacy and reputa-
tion of the victim, and at the same time upholding the constitution's core
value to protect child rights, including sexual rights of adolescent teens.
1. Overview
Recently, many of the Facebook users had shared a wall post which
reads as follows:
A teacher in New York was teaching her class about bullying and gave them
the following exercise to perform. She had the children take out a piece of
chapter and told them to crumple it up, stomp on it and really mess it up
but do not rip it. Then she had them unfold the chapter, smooth it out and
look at how scarred and dirty it was. She then told them to tell it they're
sorry. Now, even though they said they were sorry and tried to fix the
chapter, she pointed out all the scars they left behind, and that those scars
will never go away no matter how hard they tried to fix it. That is what
happens when a child bully's another child, they may say they're sorry,
but the scars are there forever. The looks on the faces of the children in
the classroom told her the message hit home.f
The above post carries a message to the children at large as how bul-
lying can leave another child traumatized for life. But the scope of this
message can be expanded to revenge porn by teens as well. In most cases
of revenge porn by teens, the victims are left with lifelong image scars.
Some victims from the orthodox background prefer to lodge a complaint
through the male members of their families, while some are severely
blamed. The perpetrators are neither spared. The wrong done by them
not only ruin their victim's lives, but create a severe damage to their
lives and career as well. While the US judiciary had set a precedence of
65 We had received this message on my Facebook wall in mid October, 2011 which
was hugely shared by others.
106
66 Id @ 21
67 Id
68 Bruce J Winick "Therapeutic Jurisprudence and Victims of Crime. Victim Partici-
pation In Justice: A Therapeutic Jurisprudence Perspective", (2008), Available at SSRN:
http://ssm.com/abstract=1102350
69 David.B. Wexler (2003), Judging in a Therapeutic Key, Therapeutic Jurisprudence
and the Courts, edited by Bruce J. Winick and David B. Wexler, (Carolina Academic
Press, Durham North Carolina, 2003) p7.
70 Id @ 21
107
anything and everything. It is for this very reason that we reject the pro-
posal of holding parents vicariously liable for the hi-tech offences, like
sexting by their teens." Undoubtedly parents are responsible for supply-
ing the devices to the teens and understandably for this core reason, they
can be held vicariously liable for teen's misuse of such devices. But in
Indian societies, where in average families, male children are still hugely
preferred and are treated in comparatively less restricted rnarmer.F this
proposal of vicarious liability of the parents can prove destructive for the
children. As the penology for online crimes targeting children prescribes
pecuniary fines along with the prison terms through Ss.67B of the Infor-
mation Technology Act, 2000 (amended in 2008) as well S.ll of the
Protection of children from sexual offences Act, 2012, the influential
parents of the offending teens may set extremely bad examples by releas-
ing the child on huge bonds. This may actually make the child understand
that parental influences and monetary strength would protect him from
the criminal justice administration always.
71 Terri R. Day. "The New Digitial Dating Behavior - Sexting: Teens' Explicit Love
Letters: Criminal Justice or Civil Liability", (2010). Available @
http://works.bepress.com/cgi/viewcontent.cgi?article= 1005 &context=terri_day
72 Jaishankar Karuppannan & Kannan C. "Abuse of Children during discipline prac-
tices: A Victimological Analysis." Indian Journal of Human Rights and Justice. Volume
1 Issue 2, 2006. Pages 1-15.
108
perpetrator himself is not involved with it and he may have never thought
of such consequences, the court has to apply substantial discretion in
awarding the penal as well as a pecuniary sentence for both the primary
perpetrator and the secondary perpetrator. The therapeutic process may
also include inducing the offender teen for offering a genuine remorseful
apology to the victim along with payment of the penalty fees 73 by the
teen offender through correctional works that may be awarded by court
sentences.
73 Murat. C. Mungan "Don't Say You're Sorry Unless You Mean it". FSU College of
Law, Public Law Research Paper No. 546. (2011 ), Available at SSRN: http://ssm.com/
abstract= 1917073
74 Id @ 69
75 Mike Celizic. "Her teen committed suicide over 'sexting''', Published in ToDay
Parenting on 3rd June. Available @ http://today.msnbc.msn.com/id/29546030/ns/today-
parenting/tlher-teen-committed-suicide-over-sexting/#.TrkzSffDXjM
76 Id @ 66
109
Conclusion
1. Children of web 2.0 era have given a new meaning to internet crimes
generated from revenge. They present a tendency to become a poten-
tial victim (of sweet 16 hallucinating offline as well as online dating)
-turned-offenders (of internet crimes).
2. The ISPs aide the children to fulfil their evil purposes.
3. Courts need to develop different prosecution and post prosecution
under custody treatment for these children; hence, along with educa-
tion and awareness among children and parents, therapeutic juris-
prudence may bring down this menace.
When the proposed NJ Bill comes into effect, sexting would no longer
be considered as a crime, but an issue to be dealt with by the school
counsellors. This may have a huge impact not only in the US, but on
other countries like India where children are turning tech-savvy very
rapidly. However, this would be a small step towards securing digital
110
SUMMARY
Sexting among teens has become a huge problem in the US as well as in India.
This has given birth to numerous issues including issues related to child porno-
graphy, exploitation of images by perpetrators and revenge porn. While in the
US laws are being created and tested for regulating sexting in relation to revenge
porn, the situation is quite different in India. This paper emphasises that there is
a lacuna in dealing with adolescent sexual behaviour including revenge taking
attitude with the help of sexted images. This paper argues that instead of dealing
the issue of revenge porn by teens in the traditional procedural ways as has been
laid down in the legal provisions or by way of rusticating the children (including
77 Reuters, "Do we need sex education in schools?" 30th April 2009, Available @
http://blogs.reuters.com/india/2009/04/30/do-we-need-sex-education-in-schools
78 Darshan Chaturvedi "Schools, students keen on studying sex education". July 5,
2010 Published in http://articles.timesofindia.indiatimes.com/20 10-07 -05/vado-
dara/28298671_1_school-teachers-education-administrators
111
the perpetrators and the victim) from the school as has happened in India in
several occasions, Therapeutic Jurisprudence approach should be taken up.
Key words: Sexting, Revenge Porn, United States, India, Adolescent Sexual
Behaviour.
RESUME
La textopomographie entre adolescents est devenue un enorme probleme tant aux
Etats-Unis qu'en Inde. De nombreuses questions se sont posees a propos de la
pedopomographie, de l'exploitation d'images par les auteurs, et de la pomogra-
phie de rcpresaillcs.Tandis qu'aux Etats-Unis on experimente des legislations
censees reguler la textopomographie de vengeance, la situation est tres differente
en Inde. Le present article met en relief la lacune qui existe dans la maniere de
gerer le comportement sexuel des adolescents, y compris I' attitude de revanche
a l'aide d'images communiquees par SMS. Les auteurs du present article consi-
derent que plutot que de faire appel aux voies traditionnelles de procedure ou
d' eloignement de I' ecole des enfants auteurs ou victimes, comme cela a souvent
ete le cas en Inde, le choix devrait etre fait d'une approche "therapeutique" du
droit, c 'est-a-dire d'une pratique du droit prudente, soucieuse de ses effets psy-
chologiques.
RESUMEN
EI sexting entre adolescentes se ha convertido en un enorme problema, tanto en
los Estados Unidos como en la India. Ello ha dado lugar a numerosas cuestiones,
entre elIas, las relacionadas con la pornograffa infantil, la explotacion de image-
nes por los autores y la pornograffa de represalias. Mientras que los Estados
Unidos han adoptado legislaciones destinadas a regular el sexting de venganza,
la situacion es muy diferente en India. Este articulo pone de relieve la laguna que
existe en la manera de gestionar el comportamiento sexual de los adolescentes,
incluyendo la actitud de venganza utilizando imagenes obtenidas por SMS. Los
autores del presente articulo consideran que en lugar de utilizar las vias tradicio-
nales de procedimiento 0 de expulsion de la escuela de los nifios autores 0 vic-
timas, como ha sido a menudo el caso en la India, deberfa llevarse a cabo un
planteamiento "terapeutico" de la ley, es decir, una practica del derecho pru-
dente, preocupada por los efectos psicologicos que puede provocar su aplicacion.