Reframing Risqué/Risky: Queer Temporalities, Teenage Sexting, and Freedom of Expression
2. Constructing Teenage Sexting as Risqué/Risky
From a legal perspective, each photo may be constituted as child pornography and individuals can be charged with Possession of Child Pornography as defined by the Criminal Code of Canada. Further, a person sending a photo or video, even of themselves, can be charged with Distributing Child Pornography. In some instances, parents will be at risk of Criminal charges if their child’s phone is in their name
[C]hild pornography creates a risk of harm that flows from the possibility of its dissemination. If disseminated, child pornography involving real people immediately violates the privacy rights of those depicted, causing them additional humiliation. While attitudinal harm is not dependent on dissemination, the risk that pornographic representations may be disseminated creates a heightened risk of attitudinal harm(, para. 164)
3. Calculated Risk and the Role of Queer Time
In the nineteenth century ‘the moral’ was a distinctive genre; things were condemned as ‘wrong’ or ‘immoral’. Increasingly, morality has come to function through proxies, not in its own voice, but in and through other discursive forms, the two most important and closely related being the discourses of ‘harm’ and ‘risk’…The moral dimension is not excluded, rather it becomes subsumed within discourses whose characteristics have a utilitarian guise(, pp. 166–67)
Queer time for me is the dark nightclub, the perverse turn away from the narrative coherence of adolescence—early adulthood—marriage—reproduction—child rearing—retirement—death, the embrace of late childhood in place of early adulthood or immaturity in place of responsibility. It is a theory of queerness as a way of being in the world and a critique of the careful social scripts that usher even the most queer among us through major markers of individual development and into normativity(as cited in , p. 182)
If we thus take into account the challenges offered by queer theory and the RACK approach to s/m, it become apparent that the process of deciding which risks and desires will be considered unacceptable, and which will be ignored or naturalized, depends on sexual ideology that privileges vanilla risk aversion over non-normative desire—whether or not there is a claim or evidence of non-consent(, p. 259)
Many of the teenagers I have interviewed have given up on controlling access to content… Rather than trying to limit access to content, they work to limit access to meaning. They use pronouns and in-jokes, cultural references and implicit links to unmediated events to share encoded messages that are for all intents and purposes wholly inaccessible to outsiders... Only those who are in the know have the necessary information to look for and interpret the information provided(, p. 349) (Emphasis added)
gave away data that provides insights into my mother, brother, grandparents, and even children that I don’t yet have. I never asked my future grandchildren for permission to offer their data to a scientific database. I made a decision about the privacy of my data that affects numerous people who are implicated but who have no say. And, in doing so, I learned information about them that they may not wish to know, let alone have me know(, p. 348)
Conflicts of Interest
References and Notes
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- 1Teenagers for the purposes of this article are those between the ages of 13 and 17. This age group is also referred to as adolescents, teens and minors throughout the article. Recent studies of arrest trends for child pornography possession and production in the US have found that child pornography possession and production arrests grew significantly between 2000 and 2006 and again in 2009 [1,2], and that a large segment of the population being criminalized were minors. Twenty-three percent of people arrested for child pornography production in 2009 were 17-years-old or younger (, p. 2). Approximately one-third, or 134, of these young people created these images ‘in the context of romantic relationships or for sexual attention-seeking’ (, p. 2). According to another US study of arrests, of the cases involving ‘youth-produced sexual images’ that constituted child pornography in 2008 and 2009, 33 percent were classifiable as ‘experimental’ or those which ‘did not involve adults or appear to include any intent to harm or reckless misuse’ (, p. 3). Nevertheless, ‘in 18% of the experimental cases, in which there was no other criminal or malicious activity beyond the making or transmission of images, there was an arrest’ (, p. 6) meaning that 47 youth who consensually ‘sexted’ for ‘romantic’, ‘attention seeking’ or ‘other’ purposes were subject to criminal prosecutions.
- 2The Court in R. v. Sharpe sites section 2(b) of the Canadian Charter of Rights and Freedoms which reads as follows: “everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication.” A discussion of the facts and the decision reached in R. v. Sharpe is discussed below.
- 3Chief Justice McLachlin goes on to write: The legislation prohibits a person from articulating thoughts in writing or visual images, even if the result is intended only for his or her own eyes. It further prohibits a teenager from possessing, again exclusively for personal use, sexually explicit photographs or videotapes of him- or herself alone or engaged with a partner in lawful sexual activity. The inclusion of these peripheral materials in the law’s prohibition trenches heavily on freedom of expression while adding little to the protection the law provides children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the legislation is not demonstrably justifiable under s. 1. (, para. 110).
- 4The private use exemption is subject to a number of very significant and mandatory limitation and prerequisites, most notably, for our purposes partnered monogamy and the requirement that:
- the recording must be kept in strict privacy by the person in possession, and intended exclusively for the private use by the creator and the persons depicted therein (, para 116).
- 5William Eskridge argues that the meaning of sexual consent has changed over time and in response to women’s and queers’ increased power (, p. 48). Consent is not a simple volitional category but rather is inherently concerned with legal status and social policy (, p. 55). That is, the recognition of a valid choice cannot be separated from the status of the chooser(s) and the chosen (55). The legal meaning of the same act may differ depending on one’s status as a minor or an adult. However, as Eskridge notes, “status and consent are both conceptions serving a larger cultural script… [which is] socially regulatory” (, p. 55). Childhood is a culturally specific social construct. There are limits to relying on one’s status as a “child” to deny their ability to consent to sexual relations and expression. In making this argument we do not deny that there very well may be important difference between a 13 year old and a 25 year old sexter, especially when we take into account gender, sexual orientation, race, class and other intersecting forms of power and oppression, however, blanket understandings of vulnerability based on age does not always accurately account for young people’s assessment of their experiences . We share with Angelides a concern about adults’ willingness to accept uncritically an adolescent subjectivity that claims to have been harmed and victimized, but not accept an adolescent subjectivity that claims desire, autonomy, and consent . Given that one’s agency is always partial and constrained by internalized norms and structural constraints (for both adults and young people), in this article we start from the position that consensual teenage sexting ought to be acknowledge as a valid expressive choice notwithstanding our complex cultural context.
- 6Ideas about the inherent riskiness of teenage sexting are likely an extension of the Court’s finding in R. v. Sharpe . In it the Court was faced with a constitutional challenge to the criminalization of the possession of child pornography as set out in s. 163.1(4) of the Canadian Criminal Code, the purpose of which is to protect children from exploitation and abuse by prohibiting possession of material that presents a reasoned risk of harm to children. With respect to the harms of child pornography the court wrote:The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities(, para. 158) (Emphasis added)However, as is discussed at a later point in the article, this claim is undermined by the creation of the existence of the private use exemption as well as other extant defenses to the law, such as artistic merit. It is this contradiction that largely drives this article’s analysis.
- 9Of course these distinctions bleed into, are therefore are somewhat falsely distinguished from, one another. Another classification of risk is advanced by Ringrose and Barajas who suggest that literature examining adolescent sexuality online has tended to focus on what they call “outside-unknown” dimensions of minimal sexual risks such as high profile criminal phenomena such as pedophilia. In contrast they “seek to expand [and complicate] an understanding of gendered and sexual risk into the everyday relations in the young people’s immediate, inside-known realm of peer-to-peer relations in their social networks both online and offline” (, p. 125) (Emphasis in original).
- 10In making this claim we are not proposing an alternative formula or analysis that guarantees a reliable and quantifiable yield. As Hunt writes, “holding out such a promise…all too often functions as a form of normative judgment” (, p. 175). Nevertheless, given that Canadian obscenity case law has largely conflated notions of risk and harm and denied the need to demonstrate harms (such as the risk of harm posed to women by pornography as advanced in R. v. Butler ) and given that some form of normative judgment is reproduced in law we offer a line of reasoning that ought to be considered by legal actors who are responding to this practice.
- 11See Hasinoff for a brief history of the sexting panic that emerged after early incidents of teenage sexting that occurred in the US were discussed as legal curiosities because teenagers were charged with producing child pornography (, p. 133). See also Bailey and Hanna  and Slane  for discussions of the some of the issues with a criminal law response and alternatives to it.
- 12See Hasinoff for a discussion of the shift in the on-line danger rhetoric from the late 1990s onwards .
- 13Kath Albury et al. in their analysis of Megan’s Story argue, “Young girls are ‘supposed’ to preserve their ‘reputations’ by avoiding overt demonstrations of sexual knowingness and desire” (, p. 465).
- 14Indeed additional efforts by teens to control the meaning, if not the content, of their digital footprints is discussed at a later point in the article.
- 15For a discussion of the responsibilization the teenage creators of sexual imagery, rather than those who redistribute their imagery without their consent, for the harms that may flow to them see Karaian .
- 16That said, a growing and related anti-sexting discourse has developed in the Canadian context which constructs all forms of sexting, consensual or otherwise as self/peer-exploitation. For a critical consideration of the structural integrity and effects of such a move see Karaian .
- 17For example, the notion of attitudinal or communicative harm, as Calder and Beaman note, is a vestige of the claims regarding the communicative and social harms of pornography stemming from dominance feminists’ arguments in R. v. Butler (1991) wherein the Supreme Court of Canada accepted the argument that pornography deemed obscene might give rise to ‘social harm’ of a form cognizable by the criminal law, thus producing, according to Calder and Beaman, a “legal recognition as real of something whose metaphysical status was deeply contested—a certain form of harm[that has long buoyed the criminal law]” (, p. 79).
- 18Risk scholars have also argued that we must recognize the “importance of ‘risk and pleasure’ as a counter discourse, especially risk taking, which Featherstone (1995) and Lupton (1999) recognize can be a means to transcend the mundane nature of everyday life” (, p. 124).
- 19They define post-feminism as “a discourse where feminist recognition of sexism is vehemently rejected or viewed as obsolete leaving a space for intensified stereotypes of femininity and masculinity to thrive” (, p. 123). See also, Salter and colleagues who suggest that portrayals of teenage sexuality which reinforce teen girls as “agentic, knowledgeable, [and] savvy” reproduce a simplistic victimization/empowerment dualism “that does not account for the participation of teenage girls in the self-production of media such as sexts and ignores the complexity of young people’s engagement with new technology in a cultural environment characterized by significant gender disparities” (, p. 304).
- 20Winnubst’s sets out some of the distinctions between continental philosophy’s and queer theory’s engagement with time. According to Winnubst, “Several different philosophical quarters have influenced this work on temporality: Lacanian psychoanalysis, Husserlian phenomenology, Bataillean general economy, Foucaultian genealogy and, recently, a Deleuzian kind of relationality and becoming. But queer theorists have also taken up the dynamics of temporality as they emerge out of different cultural, political, and literary archives—i.e., out of historical and contemporary resources, ranging from ethnographies and interviews to film and popular culture that are common to the interdisciplinary scholarship in cultural studies, but not to scholarship in philosophy—and these subsequently inform the kinds of theoretical elaborations at work in various strands of this debate within contemporary queer theory” (, p. 138).
- 21The study also finds that “Although one-quarter of creators report that a sext they have sent was forwarded by the intended recipient, only 15 percent of students who have received a sext created from them report that they forwarded the sext to someone” (, p. 24).
- 22Klettke and co-authors reviewed 31 sexting studies (out of a total of 128 articles which met their original inclusion criteria) (, p. 45).
- 23Halberstam argues that “Queer subcultures produce alternative temporalities by allowing their participants to believe that their futures can be imagined according to logics that lie outside of those paradigmatic markers of life experience—namely birth, marriage, reproduction, and death” (, p. 2). Later in the text, Halberstam calls for “an understanding of subcultural life as a place of collectivity rather than membership” (, p. 179).
- 24YourTango, a popular site that provides expert advice about love, sex, dating and relationships, provided a list of 8 Do’s and Don’ts of Sexting. The list is as follows:
- Don’t sext to soon— it is important get to know the person first and determine whether you can trust them
- Don’t sext before having live sex—you don’t want to kill the curiosity as well as over deliver or under deliver the real thing
- Do be a tease—look at it as foreplay; flirt and build up anticipation
- Do mirror your partners mood—you want to ensure reciprocal interaction
- Don’t be a selfish sexter—ensure both parties are comfortable and equally satisfied with the level of participation
- Do focus on details—by being descriptive you can increase anticipation and maintain engagement
- Don’t drink and sext—to prevent any unwanted sexting make sure you are sober
- Don’t use sexting as a substitute for real thing—“Make sure to create a healthy balance between the different types of sex you have and keep the passion and excitement going” .
© 2015 by the authors; licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution license (http://creativecommons.org/licenses/by/4.0/).
Karaian, L.; Van Meyl, K. Reframing Risqué/Risky: Queer Temporalities, Teenage Sexting, and Freedom of Expression. Laws 2015, 4, 18-36. https://doi.org/10.3390/laws4010018
Karaian L, Van Meyl K. Reframing Risqué/Risky: Queer Temporalities, Teenage Sexting, and Freedom of Expression. Laws. 2015; 4(1):18-36. https://doi.org/10.3390/laws4010018Chicago/Turabian Style
Karaian, Lara, and Katherine Van Meyl. 2015. "Reframing Risqué/Risky: Queer Temporalities, Teenage Sexting, and Freedom of Expression" Laws 4, no. 1: 18-36. https://doi.org/10.3390/laws4010018