Anomalous Prosecution

Generally speaking, I am against laws that prohibit 'victimless' crimes, although my idea of what constitutes 'victimless' may be quite different from yours, especially if you are a particular kind of libertarian. I am, for example, perfectly prepared to entertain supporting laws banning activities in which the only immediate victim is the perpetrator, so long as a likely consequence of the activity is something that might harm the rest of us — or cost the rest of us money. Thus, for example, I support motorcycle helmet laws because the accident victims end up in public emergency rooms…and sometimes become public charges for years if the injuries are serious.

And I support laws against child pornography produced with real children. Not because I am convinced by the evidence that the material harms the people who acquire it or that it encourages to go out and hurt children (although the latter, if proved, would be a good reason for the law)—from what I've read, it seems at least possible that as many folks sublimate with the virtual stuff and leave the real kids alone. Rather, it seems pretty clear to me that the production of the stuff hurts the children used to make it in all sorts of ways, and that this alone suffices to ban its manufacture. It follows that one bans sale and perhaps also exchange and even possession in order to reduce demand. (Note that this means that the case for banning virtual child porn (i.e. the fake stuff) seems less strong to me.)

What then to make of the latest child porn case reported in Pittsburgh? (Updated)

According to the Pittsburgh Post-Gazette, Teen who posted own photo charged with child porn.

State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.

Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms.

A police report did not say how police learned about the girl. They found dozens of pictures of her on her computer.

She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.

To me this seems a real case of arresting a victim, the person the rule is designed to protect, and a fairly poor use of prosecutorial discretion. I could vaguely understand it if it were a profit-making business, but this sounds from the admittedly sketchy news report as if it's more a case of a confused, probably lonely, child who needs counseling (and friends), not a trial and a police record.

It's true that child porn is an unusually strict liability crime, in which possession alone, without intent or even knowledge, constitutes the offense. It's also true that police and prosecutors are not always reasonable about some kinds of offenses. Still, this prosecution simply cannot be what the drafters of this statute had in mind.

Police said they are trying to identify all the people who receive photos from the girl.

If the 15 year old in question sent racy pictures of herself to a boyfriend (or girlfriend) of the same age, or a would-be friend, it's also a little hard to believe that the recipient of the pictures deserves to be prosecuted…although if the recipient incited the photo session I suppose the issues start to get murky…

Update: A little reflection, and a moment's Westlaw, suggests that as regards the 15 year old's having copies of pictures of herself, she's arguably protected under Stanley v. Georgia, 394 U.S. 557 and Osborne v. Ohio, 495 U.S. 103 (1990). Stanley — something of an orphan in the law — holds that private possession of porn in the home is protected, but sharing isn't. Osborne is oft cited for the idea that child porn is outside the rule in Stanley…but in fact the case said that a state anti-child-porn law was constitutional because it protected minors from exploitation—and because the state courts had read in a mens rea requirement. This prosecution would fail at least the first of those tests, and probably both. But that doesn't speak as clearly to her exposure to prosecution for sending the pictures of herself.

But I could be wrong: I never have been very interested in the pornography jurisprudence of the Supreme Court, as it always seemed both contrived and arbitrary. I'm sure that many of my colleagues, readers, and other bloggers know the law in this area better than I. (Eugene, are you out there?)

In any event, the argument is surely suspect as it ignores the Llewellynian fact that what a case is thought to say is sometimes more important than its actual text…

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16 Responses to Anomalous Prosecution

  1. Heidi says:

    So if I’m reading between the lines here correctly on the “child abuse” charge, did they just claim that you can’t masturbate if you’re under age?

    We’re gonna need a really big jail.

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  3. Joe says:

    Osborne is oft cited for the idea that child porn is outside the rule in Stanley…but in fact the case said that a state anti-child-porn law was constitutional because it protected minors from exploitation—and because the state courts had read in a mens rea requirement. This prosecution would fail at least the first of those tests, and probably both

    This seems academic in that she posted the photos, so we aren’t dealing with mere possession anyhow. By posting it, she clearly opened herself up to “exploitation,” and arguably mens rea — the law is protecting the minor from herself, so “guilty mind” could be read in a somewhat creative fashion. Anyway, mere possession doesn’t quite save her either — is she the only one with access to her computer? The chance of the pictures being posted on the web also opens her up to liability.

    Stupid to penalize her, but I don’t know if Osborne saves her given your reading.

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  5. fishfry says:

    “Thus, for example, I support motorcycle helmet laws because the accident victims end up in public emergency rooms…and sometimes become public charges for years if the injuries are serious.”

    Well then I suppose you support seatbelt laws for the same reason. And of course cigarette smokers, and heavy drinkers, and donut-aholics, they may end up sick at public expense too. Better pass a law. And this is “libertarian” — how, exactly?

  6. Michael says:

    I am NOT libertarian. I said my view was DIFFERENT from libertarians (“my idea of what constitutes ‘victimless’ may be quite different from yours, especially if you are a particular kind of libertarian.”). And, yes, I support seatbelt laws, and cigarette regulation. But not all currently regulated drugs are addictive, and I’d de-regulate those.

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  8. seebs says:

    So… If they try her as an adult, is it still a crime?

  9. shard says:

    How could it?

    If she was treated as a legal adult, then the photos, provided that it is only her in all of them, would all be pictures of an adult, and their charges would be invalidated.

    If she has a decent lawyer, at least.

    Personally, I think the judge should just throw the case out; this would definitely not result in a good precedent, regardless of the outcome.

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  11. Professor Froomkin:

    I think that there is some better case law that demonstrates the illegitimate nature of the charges. I identify them over at De Novo.

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  13. Aaron Swartz says:

    Michael’s logic for supporting bans on possession of child pornography apparently is:

    1. Possessing child porn encourages distribution
    2. Distribution encourages manufacture
    3. Manufacture harms the children

    Let’s apply the same logic to terrorism:

    Unquestionably, discussion of terrorist attacks and the endless replays of related footage embolden and encourages the terrorists. And even more clearly, terrorist acts harm people, far more than taking nude photos of children. So I guess it would be alright and sensible for the government to ban discussion of terrorist acts.

    Who needs the First Amendment when you can ban speech for having a tenuous relation to some past harm? Good thing we have Ashcroft to decide what speech is of value!

  14. Morfos says:

    Finding out what they did to her pisses me off. Its her damn body, she can use it to stoop to that level if she wants to. Not because I think it is good, simply because it does not harm anyone. She is NOT a danger to society. Im so pissed today, some people at my school thinks she actually should be punished for what she did. And I was berated for thinking that she should not be punished. I f***ing hate reactionaries who think that everything against the law is evil and anything legal is ok. Our government is not perfect! Anybody who is not a threat to society should not be locked away anyway! And there is a first amendment, stupid Conservatives and Authoritarians. At least Liberals and Libertarians have a brain, unlike some people….

  15. Brian says:

    Why does it show she’s disturbed because she’s 15? Does she not have hormones? If she were 16, she wouldn’t be disturbed?

    Furthermore, I believe its ridiculous to go after people the law was meant to protect. It shows that the legal system is pushing a moral agenda, not trying to protect people. Also, it shows they act on emotions, whether than logic.

    If she were having intercourse with someone, she’d have to be 4 years older for it to be considered “statutory assault”, but since its “child porn” (of herself), she’d be held under the laws regarding child porn which is different. I’ll show both below. She could be, if the judge had enough of an axe to grind, be sentenced to juvenile detention, and then afterwards to adult prison. The area she lives in is very conservative and might happen to make an example of her. It’d probably be in her best interest to take this case to the state supreme court, and then if that doesn’t work to the federal supreme court.

    I’m not from Pennsylvania, by the way, but am unfortunately still a citizen of this screwed up country known as the United States. :roll:

    “(f) Exceptions.–This section does not apply to any material that is possessed, controlled, brought or caused to be brought into this Commonwealth, or presented for a bona fide educational, scientific, governmental or judicial purpose.”

    Maybe she can argule t was for educational purposes ;-)

    3122.1. Statutory sexual assault.

    Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other.

    6312. Sexual abuse of children.

    (a) Definition.–As used in this section, “prohibited sexual act” means sexual intercourse as defined in section 3101 (relating to definitions), masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.

    (b) Photographing, videotaping, depicting on computer or filming sexual acts.–Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act is guilty of a felony of the second degree if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed. Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act is guilty of a felony of the second degree.

    (c) Dissemination of photographs, videotapes, computer depictions and films.–Any person who knowingly sells, distributes, delivers, disseminates, transfers, displays or exhibits to others, or who possesses for the purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others, any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act is guilty of a felony of the third degree.

    (d) Possession of child pornography.–Any person who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act is guilty of a felony of the third degree.

    (e) Evidence of age.–In the event a person involved in a prohibited sexual act is alleged to be a child under the age of 18 years, competent expert testimony shall be sufficient to establish the age of said person.

    (e.1) Mistake as to age.–Under subsection (b) only, it is no defense that the defendant did not know the age of the child. Neither a misrepresentation of age by the child nor a bona fide belief that the person is over the specified age shall be a defense.

    (f) Exceptions.–This section does not apply to any material that is possessed, controlled, broug

    —–

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