A friend of mine, also a libertarian, once said the ultimate Reason magazine article would be about whether or not it should be legal for a man to clone himself for the sole purpose of sexually gratifying himself once his younger self comes of age.

Hey, who says libertarians don’t have a sense of humor?

This scenario doesn’t quite hit the same peak, but it’s close. It’s from this week’s Savage Love column:

I was in a relationship in high school with a girl from the time we were 14 until we were 16. During that time we made a lot of sex tapes together. Sometimes I’d hold the camera, sometimes she would, sometimes it was on a tripod. We both enjoyed watching these videos together. We’ve remained friends, and she kept some of the tapes and I kept some, only for our private viewing.

We are in our late 20s now, and she recently asked if I could burn copies of our tapes onto DVDs on my computer. We were both minors when we made these tapes, and we were both willing, so am I breaking the law by making copies for her? Or by possessing copies of my underage self screwing my underage girlfriend?

Dan Savage found the answer:

“What it comes down to is this,” said Laura Eimiller, spokesperson for the Los Angeles office of the Federal Bureau of Investigation, “the production of child porn–and a child is defined as any person under the age of 18–is illegal. The age of the individual filming it is irrelevant. Whether it was consensual is irrelevant. It is still child porn.” And if the children in the porn made the porn? And if they weren’t sharing it with anyone else? “If a complaint came to our attention about pornography that featured an individual who was a child at the time the pornography was created, it would certainly be investigated,” says Eimiller.

So never mind what the law is. What should it be?

I have a hard time figuring out who exactly is harmed by two consenting adults sharing videos of themselves–only between themselves–having sex with one another as consenting minors. The “ick” factor begins to gnaw at me if they start sharing the videos with other people, though still, while I’d find it distasteful, it’s hard to see who’s actually harmed. Is anyone really being exploited when the exploiters are also the exploitees? With no harm done to a third party, I can’t make a good case for why it ought to be illegal.

I suppose conservatives would argue that the dissemination of such videos feeds the appetites of pedophiles, but by that logic, shouldn’t we ban romantic portrayals of drug use, too?

In Ashcroft v. Free Speech Coalition, the Supreme Court indicated that merely feeding the appetites of pedophiles, by itself, isn’t necessarily a crime. The Court found that pictures of of-age adults engaged in sex acts digitally manipulated to look like minors don’t constitute child pornography. I also seem to remember a case about a man who was charged with possessing child pornography when police found a diary in his home in which he had written out sexual fantasies involving children. The stories were solely for his own consumption. I don’t remember the outcome of that case, and frankly, I’m more than a wee bit uncomfortable Googling anything involving the phrase “child pornography” to find it.

I will say that I’m a little baffled by the FBI investigator Savage consulted, who seems to be saying that while consensual sex between minors of roughly equal ages is legal, it is illegal for either minor to record it. It’s hard to come up with a justification for that distinction, particularly when the act of recording sex is generally done as part and parcel of the sex act itself.

The excellent Spiked Online explored similar issues a couple of years ago.

This entry was posted on Wednesday, April 26th, 2006 at 6:41 pm by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.