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Are people who looked at McKayla Maroney’s underage photos guilty of looking at child pornography?

Hackers are unlikely to face prosecution for providing images of underage women in the massive celebrity photo theft of earlier this week.
Hackers are unlikely to face prosecution for providing images of underage women in the massive celebrity photo theft of earlier this week.
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Olympic gymnast McKayla Maroney, one of a number of female celebrities whose private nude photos were posted online without their consent, has now taken legal action against several of the websites that posted her images. Maroney says she was under 18 at the time the photos were taken, which has some wondering whether the images constitute child pornography. (For the purposes of pornography laws, anyone under 18 years of age is considered a "child.")

Child pornography, as defined by the US Department of Justice, is "any visual depiction of sexually explicit conduct involving a minor." Under federal law, it is illegal to produce, distribute, import, receive, or possess child pornography. And notably, "the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity," according to the Citizen's Guide to US Federal Law on Child Pornography.

TMZ reported that one of Maroney's attorneys sent a letter to Porn.com, a site that reposted Maroney's naked photos, informing the site's administrators that the gymnast was in fact underage at the time the photos were taken. The images were taken down. Another of her attorneys, writes TMZ, sent letters to several other websites claiming "Maroney owns the copyright on the hacked photos." (Maroney originally denied the pictures were hers on Twitter, but her attorneys' involvement suggests the photos show the gymnast, as NY Daily News points out.)

While sharing anyone's nude photographs against their will is both a violation of law and a breach of ethical responsibility, the revelation of Maroney's age certainly complicates this issue in several ways. And as the Daily Dot pointed out, many Reddit administrators and users have been hurriedly trying to wipe any and all traces of Maroney's photos from their website — which certainly seems like it's an acknowledgement of wrongdoing. For example, the administrators specifically used the phrase "child pornography" on the Reddit thread.

Here are a few questions raised by Maroney's stolen pictures:

1) Do the pictures of Maroney constitute child pornography?

A naked picture of a child does not always constitute child pornography, according to Nancy Gertner, a retired federal judge and current faculty member at Harvard Law School. "It depends on the pose, whether it's lewd or lascivious," she said over the phone. If the pose is lewd or if it can be construed to be lewd, Gertner said, "then those who are downloading it are downloading child pornography." Gertner also noted that different states have different requirements when it comes to deciding whether an image of a minor is pornographic.

2) If it turns out Maroney's images are deemed lascivious, does that mean that everyone who looks at them commits a crime?

This is where things get murky. Legal scholars and policy makers talk about three different aspects of child pornography, according to Mary G. Leary, a law professor at Catholic University's Columbus School of Law: 1) possession, 2) production, and 3) distribution. The producer of Maroney's image could be the person — whether Maroney or someone else — who snapped the photo.

Those possibly involved with distributing the photographs are those who make the image available and the websites that host them. But when it comes to possession, as Leary said, "generally speaking, 'possession' is not limited to physically holding a hard copy of an image in one's hands." It can include exercising control and dominion over an image such searching for an image uploading it and controlling it. In other words, in general, some people who viewed Maroney's nude images on line may have actually possessed the images.

However, Leary noted that possession is not enough for a child pornography charge. "In most jurisdictions, there has to be a knowing possession, the mens rea — the mental state necessary for a crime."

What this means is, since Maroney's attorney did not confirm the nature of the image for at least 24 hours, it could be argued that many who viewed it most likely were not aware they were looking at child pornography. (The same thing might even be argued by the parties who uploaded the images in the first place.) If, for some reason, those people were ever brought to court, they could assert their actions were not "knowing." says Leary.

One way the mens rea can be established is by determining the search terms a suspect used to obtain the images. If these terms suggest that the possessor was seeking out an image of a child engaged in sexually explicit conduct, and the image meets that definition, that could suggest the possessor had the requisite mens rea.

Gertner also pointed out that the recent announcement by Maroney's attorneys "puts downloaders on notice." From this point forward, it might be more difficult for those viewing Maroney's images to argue that they had no idea they were looking at naked images of a minor.

3) If Maroney took the images herself, is she guilty of production?

The circulation of these images is not Maroney's fault. But the revelation that her nude images were taken while she was still a minor does slightly complicate the matter. That's because, when it comes to child pornography, it is possible that a minor could self-produce her own pornographic images.

"The language of [child pornography] statutes are sufficiently broad," Gertner said, "that the fact that you've generated it yourself does not matter."

As Leary explains it, several years ago, prosecutors began to realize that some of the images teenagers were "sexting" of themselves actually fit the description of child pornography; that is, the texted pictures presented minors, either by themselves or with other persons, engaged in sexually explicit conduct. So the prosecutors were in a jam: they wanted to protect the definition of child pornography, but they also didn't want to prosecute children for taking naked pictures of themselves. As a result, several states tried to come up with their own solutions to this conundrum, establishing various protocol for prosecutors confronted with self-produced child pornography. (Leary discusses this at length in this scholarly article.)

It is "extremely unlikely" that Maroney would get in trouble, Gertner said. Leary agreed: "Very rarely are these self-produced images being charged when they were made in consensual settings."

4) But will the hackers be prosecuted on child pornography charges?

It's not terribly likely, though not impossible. Essentially, the prosecution would have to prove the photo hackers possessed the mens rea described above.