REVENGE PORN BY TEENS IN THE UNITED STATES

AND INDIA: A SOCIO-LEGAL ANALYSIS

OEBARATI HALDER (1), K. JAISHANKAR (2)

Introduction

Digital communication technology (OCT) and the internet have cre-

ated a revolution in transforming human behaviour. Both OCT and the
internet have helped human beings to express themselves in a better fash-
ion than the pre-digital era. A person's speech and expression has become
more easily accessible by others. Such speech and expression includes
professional as well as personal speech and expression. Along with the
adults, the children of web 2.0 era from the age group of 13 and even
below have also started to use the internet and the digital communication
medium to express themselves.' Children own individual Facebook,
MySpace profile, email ids and YouTube accounts." Apart from these

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

7 New York vs. Ferber (458 U.S. 747 (1982)

8 See Daily Mail Reporter, Boy of 14 accused of child pornography after convincing girl
his age to send him sex text. Published in Mail Online, on 6th March 2011. Available @
http://www.dailymail.co.uk/news/article-1363445/Sexting-case-asks-14-year-old-child-
pomogragher.html
88

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.

PART I: REVENGE PORN BY TEENS

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

line are available in the internet. 11 However, it would be wrong to say

that only adult women fall as victim to revenge porn. Children, especially
teenage girls in the age group of 14 to 19 are equally vulnerable in this
case. Nonetheless, there are many valuable scholarly write ups, court
proceedings and media reports on the issues on cyber bullying, online
child pornography by adults, child grooming and even sexting related
cases; however, we have rarely come across serious researches and court
sentences on teen revenge porn which is hugely aided by sexted messages
and / or consented captured images. In this regard it must be mentioned
that there had been researches on sexting and approaches of US Courts
to the problem from the perspective of child pornography laws, but the
issue has not been addressed properly from the perspective of revenge
porn by teens.

2. Characteristics of online revenge porn

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:

Defamation of the victim The victim sends the

taks place as she is watched clipping/the recipient
by millions as a "sex item". stores the data in his device.

The clipping is uploaded in The clipping is circulated by

the internet and reaches the recipient partner to other
millions of viewers from all friends' devices
over the world.

11 See Barnes v. Yahoo!, available @ http://www.ca9.uscourts.gov/datastore/opi-

nions/2009/05/07/05-36189.pdf
90

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.

Depending on these basic characteristics, we define online revenge

porn as follows:

It is an act whereby the perpetrator satisfies his anger and frustration

for a broken relationship through publicizing false, sexually provoca-
tive portrayal of his / her victim, by misusing the information that he
may have known naturally and that he may have stored in his personal
computer, or may have been conveyed to his electronic device by the
victim herself, or may have been stored in the device with the consent
of the victim herself; and which may essentially have been done to
publicly defame the victim.

On the contrary, traditional cyber porn is created with the help of

professional models who perform for the visual sexual gratification of
viewers. The chief aim of traditional cyber porn lies in monetary gain for
the creator and distributor.'? The scope of this definition can cover
revenge porn by adults as well. However, for the purpose of this paper,
we are limiting the scope of this definition to revenge porn by teens only.

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

3. Patterns of revenge porn

Revenge porn in the cyber space can be divided into two main types,
viz., (i) camouflaged porn; (ii) teen porn.

(i) Camouflaged 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.

(ii) 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

Communication Decency Act. Available @ http://www.dmlp.org/legal-guide/immunity-

online-publishers-under-communications-decency-act
17 Section 512 to the Copyright Act was added by Title II of The Digital Millennium
Copy right Act,1998 to create four limitations on liability for copyright infringement by
online service providers on four categories of conduct by a service provider. For more,
see http://www.copyright.gov/legislation/dmca.pdf
 93

PART II: LEGAL PARADIGMS IN THE US

Issues of privacy, confidentiality and individual liability

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.

If compared with the present situation, in 1982, the level of sexual

maturity of minors in the US was comparatively lower than that of today.
Hence the court had rightly decided that child pornography must be

Miller vs. California, 413 U.S. 15 (1973)

21

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

banned as it raises ample assumptions of abuse and exploitation of chil-

dren by adults only for the prurient interest of adults. However, after
2007; the maturity level of the children has grown more than before.P
This is apparent in teens' sexual behaviours, especially through sexting
and self created pornography.P' Ironically, when the issue of sexting
became rampant after 2007, the courts approached the issue in the light
of either or all of these five core issues.P But after a few experiments, a
new academic principle was born."
This declared that even though sexting may present similar nuances
like child pornography, this behaviour cannot be termed as an offence
under the true meaning of Para 8 of 18USC§2256 which defines child
pornography as any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or other means, of
sexually explicit conduct, where-(A) the production of such visual
depiction involves the use of a minor engaging in sexually explicit con-
duct; (B) such visual depiction is a digital image, computer image, or
computer-generated image that is, or is indistinguishable from, that of a
minor engaging in sexually explicit conduct; or (C) such visual depiction
has been created, adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct.27
This had further influenced the law makers to create laws which
exclude sexting from the purview of offences as child pornography law
does." This is apparent from the fact that a New Jersey Bill (s-2700)29
has established that an educational program, to be developed by the
Attorney general in consultation with the administrative officer of the
court, would be an alternative to the judicial prosecution for juveniles

23 McLaughlin Julia Halloran. "Crime and Punishment: Teen Sexting in Context",

(2010). Available at: http://works.bepress.com/cgi/viewcontent.cgi? article=
1000&context=julia_mclaughlin
24 Id @ 18
25 Id.
26 Id.

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.

PART III: LEGAL PARADIGMS IN 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

also at schools.V This had further encouraged the younger generation to

ape the western culture to dress "sexily" to attract the opposite sex and
even conveying self captured images to impress internet savvy high
school sweethearts and dating partners, and also consensual capturing of
the sexual performances (excluding penetration) with the partner by the
partner himself or by automatic devices that would finally store the
'moments' in the partner's device." Even though this new teen sexual
behaviour has gained a highlight due to the infamous Delhi DPS school
case, where a 16 year old boy allegedly circulated a video clipping of his
sexual acts along with his classmate, another 16 year old girl.?" we could
find no single Indian study with reference to the usage of such clipping
for teen revenge and legal treatment of the same from the perspective of
pornography and privacy laws. The reason could be highly attributed to
the stringent juvenile justice laws prevailing in India which prevents
detailed publishing of ongoing cases involving minors as offenders and
confused state of laws when it comes to victim aided offences in the
cyber space like that of Delhi DPS school case.

2. Judicial approach towards teen revenge porn in India

In this context, we need to analyze the general law in reference to the

approach towards this issue in India. In 2001 when the 16 year old stu-
dent of AirForce Bal Bharti School created a porn website with the pic-
tures of his female classmates and teachers, unlike the US, the police did
not arrest the accused.t" The case was handled by the juvenile welfare
board after the father of one of the minor female victims lodged a com-
plaint to the police. Even though the Indian parliament had passed the
Information Technology Bill, 2000 which was heavily influenced by the
model Law on electronic commerce adopted by the United Nations Com-
mission on International Trade Law; adopted by the United Nations by

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

Of India / New Delhi August 26, 2008, http://www.business-standard.com/india/news/

dps-mms-scandal-sc-stays-proceedings-against-eba y-its-chief/332573/
47 The Juvenile Justice Act, 2000, which was subsequently amended in 2006, divided
the category of children that could fall under two heads; namely, "children in conflict with
law", which is dealt by chapter II of the Act, and "children in need of care and protec-
tion", which is dealt by Chapter III of the Act. Chapter II does not clarify separately as
how the juvenile offender charged with offences under Indian Information Technology
Act, can be dealt with. The chapter however highlights the treatment of juvenile victims
who may have been abused by adults by way of engaging the child for begging, employing
the child for hazardous work, withholding the child's earnings etc, or by negligence,
abundance, or by giving intoxicating objects or psychotropic substances etc, and the
punishment of the adults who do these.
48 National Commission for Protection of Child Rights (NCPCR), The Commissions
for Protection of Child Rights Act, 2005 (No.4 Of 2006), The Right of Children to Free
and Compulsory Education Act, 2009 (No.35 of 2009) are the glaring examples.
102

specifically focuses on the issue of revenge porn created and published

by children.'? Further, the Indian Constitution has expanded the scope of
right to life'" to right to privacy through the famous case Kharak Singh
vs. State of UP.51 But this right has not been tested in reference to digital
privacy of adults as well as children, other than hacking related cases.V

3. Law's approach to adolescent normal and aggressive sexual

behaviour through DCT

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

49 This point will be elaborated later.

50 Right to life has been guaranteed vide Article 21 of the Indian Constitution which
states "No person shall be deprived of his life or personal liberty except according to
procedure established by law."
51 Kharak Singh vs. State of UP «1964) 1 SCR 332)
52 See Vinod Kaushik & another vs. Madhvika Joshi & Others, Appeal no. 2 of 2010,
CDJ,2011,Cyber At001, Retrieved from http://catindia.gov.in/pdfFiles/Appeal_No_2.pdf
on 23.10.2011. Even though this present case does not primarily emphasize on right to
privacy in the digital space, it has highlighted the privacy factor through hacking and
related issues.
53 Which may include masturbation, viewing adult porn sites, adult movies, reading
adult sex stories etc.
54 See Halder & Jaishankar 2011, pg 5 & 6.
55 See additional terms of service for Orkut, available @ http://www.orkut.co.in/html/
en-US/additionaltenns.orkut.html, Registration and account security for Facebook @
http://www.facebook.com/tenns.php ?ref=pf
56 Special correspondent, "Kamataka bans mobiles for those under 16s", September,
12,2007. Available @ http://www.hindu.com/2007/09/I2/stories/200709126226I200.htm
 103

phones. Following this governmental policy, the States of Maharastra'?

and Gujarat'" governments also issued orders to restrict mobile phones
by minors under the age of 16. But, the most effective result could be
seen in the notice issued by the Central Board of Secondary education
(CBSE) of India,59 where in CBSE had noted as follows:
The use of Mobile Phones definitely needs to be restricted in school envi-
ronments. The Board is of the opinion that all stakeholders connected with
school education such as students, parents, teachers and heads of institutes
need to arrive at a consensus on the use of mobile phones in their schools
and restricting its entry in the school campus. This is because mobile phones
can be a serious cause of distraction, lack of concentration, anxiety, fear and
sometimes even misuse. Even if the mobiles are in silent mode they can be
a source of disturbance within the classroom as students can make use of
Short Messaging Service (SMS) during the class or even during an assign-
ment. The cameras which are a common feature now in most mobile phones
can also be misused. There have been enough lessons that have been learnt
in the past regarding the use of mobile phones and the Board strongly rec-
ommends that students should be convinced about not carrying mobile
phones to the school.

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

57 Agencies, "Mobile phones banned in schools in Maha", Feb 21,2009 Available @

http://www.expressindia.comllatest-news/Mobile-phones-banned- in -schools- in-

Maha/4264621
58 PTI, "Gujarat government bans mobile phones in schools, colleges". August, 2,
2010 Available @ http://articles.timesofindia.indiatimes .com/20 10-08-021
india/28287399_I_mobile-phones-colleges-gujarat-govemment
59 See CBSE circular of 2009 "Restriction in the use of Mobile Phones in Schools."
Available @ http://cbse.nic.in/welcome.htm
104

tangle immediately unless the authorities frame proper charges as per

Indian standards.
US had set a tradition until the mid of 2011 to punish the wrongdoer
teens by categorizing them as 'sex offenders'. 60 Even though the term is
grave for teens who may have exercised normal adolescent sexual behav-
iour, it must be noted that internet era teens have now become matured
enough to abuse their rights of speech and expression. In India, Section
67B of the Information Technology Act (As amended in 2008) briefly
touches on this issue. This provision extensively deals with online sexual
crimes targeting children and it includes prohibitory measures against
creation, publication or causing to be published any material depicting
child in sexually explicit conduct, collecting, seeking, browsing, advertis-
ing for material depicting children in obscene, indecent or sexually
explicit act, online grooming of children for such purposes, facilitates
abuse of children online, or records own abuse or other's abuse pertain-
ing to sexually explicit act with children through five sub-clauses."
The provision expands its scope with the opening words "whoever-"
thus bringing the offending teens under its purview as well. Further, the
2012 regulation Protection of children from sexual harassment Act, 2012
also braces the issue quite in the same line as Section 67B of the Informa-
tion technology Act 2000(amended in 2008) did. It does not focus on
revenge porn created by children or sexting aided by children exclu-
sively. However, it addresses online sexual harassment and in S.ll, it
makes 'any person' guilty of sexual harassment if that person irrespective
of gender makes the child show the body parts so that it can be seen by
him/her or by others.f? or shows material to child for pornographic
purposes.v' or threatens to use in any form of media the real or fabricated
depiction through any electronic, film or digital or any other mode, the
child's body parts or the involvement of the child in sexual acts that may
be already stored with such person.P" As it could be seen, this last provi-
sion briefly touches the issue of sexting and resultant revenge pornogra-
phy. The law through S.12 also prescribes punishment for such types of
sexual harassment which may include imprisonment for a term extended

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.

PART IV: THE ROLE OF THERAPEUTIC JURISPRUDENCE

IN THE MANAGEMENT OF REVENGE PORN BY
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

terming such perpetrators as 'sex offenderst.'" which may prevent such

teen from rejoining the school.?" in India the perpetrator and the victim
as well are generally ousted from the school even if they are not tagged
with any such words either by the police or the judiciary. Both the treat-
ments actually hamper the future career of young individuals. It has to
be noted that the judiciary and the legal fraternity may get ample oppor-
tunities to apply Therapeutic Jurisprudence'" to deal with the victims
as well as the perpetrators. The scope of Therapeutic Jurisprudence
is explained by Professor David Wexler, the founder of Therapeutic
Jurisprudence School, as follows:
Therapeutic jurisprudence focuses our attention on the traditionally under-
appreciated area of the law's considerable impact on emotional life and
psychological well being. Its essential premise is a simple one: that the law
is a social force that can produce therapeutic or antitherapeutic conse-
quences. The law consists of legal rules, legal procedures, and the roles and
behaviors of legal actors, like lawyers and judges. Therapeutic jurispru-
dence proposes that we use the tools the behavioural sciences to study
the therapeutic and anti therapeutic impact of the law, and that we think
creatively about improving the therapeutic functioning of the law without
violating other important values, such as Gault-like due process."

We propose Therapeutic Jurisdiction for victim aided revenge porn

cases involving teens mainly because this could be the best way to mould
the young minds from turning more deviant. McLaughlin (2010) observed
that teens stand on the threshold of adulthood.?" Given this delicate mind-
set of young individuals, a feeling of rejection by the chosen girl, by the
society, by the school and largely by the judiciary can push the perpetra-
tor teen towards a dangerous end, even if the judiciary sentences him for
correctional punishment. The teen can grow either into an insecure man,
always fearing the police, law officers and the courts; or can grow into
a hard core white collar cyber criminal knowing the loopholes of law and
basking in the false glory of monetary power, which could save him from

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.

2. Therapeutic prosecution for offender teens

This could include proper therapeutic prosecution which makes the

offender to realize his mistake and contact the websites asking to remove
the offending posts etc. We especially emphasize on this option because
once the harming post is floated on the web, it may be impossible to
retrieve it back. Due to numerous channels of the web world and speedy
network between the users and the websites, the harming post could
spread across the world rapidly. Nothing would match the assurance of
the offender to the victim to withdraw the offending post and actively
executing the same. However, this process has to be supported by the
police and also the courts, as the websites may refuse to take down any
clipping unless the take down request is accompanied by a judicial order.
It has to be noted here that if the circulation includes revenge gratifica-
tion of the perpetrator and also monetary gain by a third party as had
been the case with DPS case, and the first secondary distributor, i.e., the

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.

3. Therapeutic prosecution for the benefit of the victim

The suicide of Jessica Logan, a victim of her own sexted message

which was hugely circulated.?" shows the need of therapeutic jurispru-
dence in cases of sexting and also cases involving victim aided revenge
porn. Jessica's case orbited around the fact that the circulation of the
sexted message drew huge humiliation to her. Even though this was a
case of revenge porn," the courts looked upon the issue of sexting pri-
marily and not the revenge gratification of the boyfriend, which probably
drew secondary importance. If Jessica was handled under therapeutic
nature of the law, probably she would have still lived to become an
ambassador herself. The primary aim of the therapeutic jurisprudence
towards the victim is to encourage her to speak up for the harm that has
been caused to her and seek her redressal rights." In case of revenge porn
aided by victim, it is quite natural that the victim would be shattered not
because of the sudden portrayal of her as sex item, but essentially because
of her own involvement in her own humiliation. Therefore it becomes the
primary duty of the police, the attorney and the courts to offer her assis-
tance to regain the mental stability to face the society which would have
started looking at her in a humiliating way. Now that the courts in the
US have started looking into the problem of sexting as a behavioural
problem, which is very different from the distribution of the stored infor-

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

mation as revenge porno, which is primarily motivated by aggressive

revenge taking mentality; the police, attorneys and the courts have to
encourage the victim to think like a victim and not as an aide to the per-
petrator. Further, this has to be seen that the teen victim does not tum an
offender herself by playing similar trick with the information about the
perpetrator. Therefore the court needs to restrict the offended child from
going back to the virtual life and playing this dangerous game again.
In this regard, it needs to be mentioned that the New Jersey statute on
sexting could be taken as a prime example of therapeutic legislation if
the scopes are broadened enough to cover issues of revenge porn aided
by the victim. The court and the victim's attorney also need to see that
the victim is not discriminated in the school or in the society at large.
This is especially necessary for cases where there are possibilities that
the victim may be told to leave the school as the school authorities may
fear that whole incident may damage the reputation of the school. Hence
the court has to extend the scope of the restorative judgment to cover the
decisions of the school authorities as well. In brief, the court has to apply
therapeutic jurisprudence in revenge porn cases to uphold the welfare of
the child, be it the perpetrator, or the victim.

Conclusion

This paper offers three general conclusions:

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

privacy of adolescent teens. The issue of transferring self captured 'sexy'

pictures, and consensual capturing of compromising positions with dating
partners by teens are to be dealt with school counsellors as had been cor-
rectly noted by the NJ lawmakers. For this, we strongly support sex edu-
cation and related awareness campaigns regarding cyber activity manage-
ment in the schools. But could this be possible in India? A couple of
years back when the question came up on inclusion of sex education in
school curriculum, India witnessed a mixed response from the lawmak-
ers, school authorities, parents and even students."? Even though the pro-
posal failed to materialize due to major opposition from the public and
also governments, a recent study showed that teens are willing to learn
about sex education, even if the parents are opposing the idea.?" It has
become increasingly essential now for the teens to learn how to safely
adopt the US based platforms in Indian value systems. Also, India should
adopt sensible laws to identify the teen problems. The US courts are now
turning more towards application and also the adoption of substantive
laws for preventing the destructive teen mentality through the informa-
tion super highway. India should also adopt this very approach of the US
courts while dealing with underage offenders of digital crimes. Unless
the courts set precedence about results of misuse of digital knowledge,
the children will remain ever ignorant of the facts and we may get to see
more instances of teen revenge porn activities on the net.

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
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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.