From Radley Balko:
In March 2004, two Florida teens—17-year-old male “J.G.W.” and 16-year-old female “A.H.,” as court records refer to them—photographed themselves engaged in sex acts. Then they sent the pictures from A.H.’s computer to J.G.W.’s email account. It’s not exactly clear how, but the photos soon wound up in the hands of the police. Both teenagers were charged with producing child pornography.
The sex acts themselves were not illegal; both teens were over Florida’s age of consent. It was the documentation of the sex acts that was illegal, because the federal child pornography ban defines a child as anyone under 18. In essence, they were arrested for exploiting themselves.
—not to mention, potentially running afoul of the Commerce Clause as defined by conservatives Scalia and Kennedy. But that’s a different matter.
In February 2007, Florida’s First District Court of Appeal upheld the teenager’s convictions. Judge James Wolf explained that the two minors “ could have” sold or distributed the pictures—never mind that they didn’t. He added that because the duo “placed the photos on a computer and then, using the Internet, transferred them to another computer,” they took a risk that other people would see the pictures, since their computer or email accounts could have been hacked.
In the most bizarre part of the opinion, Judge Wolf wrote that “if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives” The judge didn’t say anything about what a felony child pornography conviction might do to their “careers or personal lives.”
Okay. So the strained (and counterintuitive) rationale for the verdict notwithstanding—by Judge Wolf’s account, it is a potentially a crime to burn a DVD movie backup on one computer and then transfer it to another, because someone might hack in and steal it, violating copyright laws— what recourse did the Judge have, given that federal law has set the age at 18 for what it calls child pornography?
Is it preferable that each state set its own ages for what constitutes child porn—bringing it in line with their age of consent for sex? I would argue yes, but those in favor of federal statutes would likely note that, if such were the case, than the next Tracy Lords will be exploited in a state like Florida, where the age of consent is below 18.
I suppose the prosecutor in the original case could have refused to prosecute the crime under the federal statute. But I’m not sure what recourse the appeals court Judge had, given that the case was, in fact, prosecuted.
There seems to be a snare here—one in which this kids got caught up. I’m not quite sure how to go about fixing it—perhaps the federal statute can be amended to prevent just the interstate distribution of “pornography” featuring those who meet the requirements for consent in one state but not in another.
Or better, perhaps prosecutors can avoid trying to trump up such ridiculous charges, making it impossible for a Judge who follows the law to avoid guilty verdicts in cases like these.
Going solely by Wolf’s rationale here, it may be that he had no qualms reaching the verdict he did. But this strikes me as similar to the infamous Roberts french fry case: the law is on the books. If the prosecutor brings it to the judge, the judge needs to rule in line with the law. The unintended consequences should then so outrage those who value personal liberty that they move to have the statute amended or repealed altogether.
Of course, none of that does these now adults any good—though Balko doesn’t reveal what the sentence was. It’s possible, I suppose, that they were sentenced as juveniles and their records subsequently and retroactively expunged, or that the records are sealed and will be expunged when they turn 21.
Still, the problem here seems to lie with dubious prosecution, not so much with the verdict.
Thoughts?
I wonder how much time the judge spent reviewing the evidence.
I heard that the girl was placed on probation, I hope the guy isn’t doing 10 years on a chain gang somewhere.
The Law is an ass. How’s that for news?
First reaction – could a 14-year old caught masturbating be arrested and charged for pedophilia?
But I’m also more than a little concerned about exactly how the police wound up with the evidence. I think there’s more to the story there – for example, did Mom or Dad see the offending media while poking around (no pun intended) a kid’s PC? Could this then be an upset parent’s way of punishing the kids for their behavior? It’s messed up, if so, but if I’m one of these kids, I don’t really see any threat in emailing documentation of the activities to each other.
If the judge didn’t agree with the application of the law in this case, but felt constrained by his position to enforce it anyway, then he was free to make that clear in his opinion. If he didn’t, then we are free to conclude that his mind is as damaged as it appears from those excerpts.
As for the law itself, fixing it is simply a matter of amending the legislation to provide that child porn produced by the children themselves and not distributed shall not be prohibited.
Similar clauses have been added to other child sex laws, I don’t see any reason why it couldn’t be done here.
They should have gone for the jury trial and try to get a little jury nullification.
The judge said the conviction was upheld because they “COULD HAVE” sold or distributed the pictures? This is the standard these days? Because in the last 40 years or so I “could have” done any number of illegal acts. Guess I owe the state many many many years of time to compensate for what I could have done.
So, to properly finish that thought – how did the police get involved? It’s not an insignificant question.
Now, if they accidentally emailed gra’ma, for example (think of that “picture in my pants” cell phone commercial)…
A bit off the topic of the law side of it, if a 16 yr old girl is happily taking pictures of herself having sex with her boyfriend and sending him the pictures, then this prosecution is the least of her problems.
I don’t know how to define it, but I know it when I see it.
Please forward pics.
1. If the PCs or the residences that were used belonged to another, such as the parents, then potentially they could be held liable for the charges. This is very smiliar to parents being held liable when their kids are dealing drugs out of their homes.
2.What if it was the parents of only one of the participants that reported it? That scenario would play out with a confrontation, and the question of whether the acts AND the transmittal were indeed consensual. Even if it was proven to be the case, the federal law still pertains.
3. ‘Settled law’ and the ‘law of the land’. Gotta love it.
4. Who wants to be first in line to repeal the federal statute, or to reduce it to match the state with the lowest age of consent? There will be a brisk race betwen that, and the effort to repeal sodomy in the UCMJ.
No, because according to the American Psychiatric Association, pedophilia involves sexual activity by an adult with a prepubescent child. [emphasis added]
In your case, the 14-year-old is merely having a teenage crush.
Oh, thank heaven there were no digital cameras or cell phones to record the stupid stuff I did as a kid, and no Internet to globalize my shame: I remain an uncaught and unpunished incendiary.
So does this mean all those millions of naked baby pictures stashed in shoeboxes across the country are now contraband and potential felony convictions? They “could” be sold or distributed, after all.
anyone35 or any other age whose parents didn’t take some?
And then also won’t these guys have to register as sex offenders? Which, that’s harsh.
Also, Judge Wolf has to face a vote to keep his office. And also he’s a big bald stinking Democrat.
Whoops. Actually I don’t know if he’s a Dem or not. The phone rang so I hit send. That was wrong of me. I like to do this while I work because my job is prosaic I think. He does have to go to the voters though, but in Florida, there’s no party ID involved. Also, he has ambitions to get on the federal bench, which suggests he’s an R.
I’m not comfortable with this result either, but the question is really what is the definition of the crime of possessing child pornography. If the rationale is to prevent the exploitation of minors, why does the fact that they produced photos of themselves put this outside of the definition?
My thought is that the law has to have tangible, absolute standards in order to be enforced. 18 years old might be an arbitrary cut off point, but its the one that society has chosen and given the immaturity of teens and young adults today, it might even be a bit low.
If you are opposed to child porn, you are opposed to child porn, whether it was voluntary or not, or if it was for private consumption or not. Just because these kids were fairly old doesn’t change that.
Scooter: Not only what Geezer said, but pedophilia as such is not a crime.
Having sex with minors is, however; statutory rape, at bare minimum, and probably other add-on crimes.
There just isn’t such a crime as “pedophilia” (which is the sexual attraction to pre-pubescents, not the fact of acting on such attractions), at least generally.
It’s possible that some state or other might have created such a statute, though what the point would be as opposed to existing statutory rape and sexual abuse of minors laws would be, is unclear.
In practice it doesn’t make a whole lot of difference, but it’s best to be clear, careful, and exact with the use of such terms.
“Pedophile” is already used far too broadly, and thus loses its impact; once people start incorrectly associating it with “sex with anyone under 18”, the real horror of pedophilic sex is lessened by association with the not-particularly-horrible-at-all “sex with someone under 18”.
Was the young lady black, by any chance?
I know this may be displaying a lack of a sense of humor but, ah what the hell…
According to the snippet from Balko, it was the pictures of the sex acts, and not mere nudity, that formed part of the offense.
This nonsense about the Internet sounds like they were charged with distribution. I’ll have to see if I can find this opinion in Lexis or Westlaw. Other than maybe stretching a bit on that count, I dunno, what’s a judge to do? He can’t invalidate the law. You’re probably right, without knowing more facts, that the prosecutor probably should have let this one slide. Police and prosecutors do it all the time, though probably not so much for sex or exploitation crimes.
I’ll get back to you on that as soon as I finish exploiting myself.
tw: personal63
Six more and I can stop typing left handed!
Pablo, I got the magic number earlier on Jeff’s car post. I was a amused.
if a 16 yr old girl is happily taking pictures of herself having sex with her boyfriend and sending him the pictures, then this prosecution is the least of her problems.
I disagree, being charged with a felony sex offense is extremely serious. People carry that with them for life. Lots of people screw around at age 16 and turn out fine. I find your position utterly incomprehensible.
Speaking as someone who has been convicted of three sex offenses, let me tell you, they’re no joke. I had to register with Jeff and get his permission before he would let me post here (he was cool about it, though).
(seriously: no sex offenses)
For under-18s who exploit themselves and or their close friends to make recordings for personal use, there shouldn’t anything more than a misdemeanor, and certainly not a sex offense, but with some minimum jail time (perhaps 3 months, and nab their driver’s license ‘til they turn 19). Enough that kids will get the message not to screw around with cam phones, but not so much that you ruin lives.
In circumstances where an under-18 is exploiting his or herself for commercial gain, there should be some sort of misdemeanor or felony conviction, but it should not be a sex offense. Those are for dangerous pervs, not entrepreneurial sorts. I’m down with sending them to prison for 4 years to send a message, but let’s not pretend they’re little Jeffy Dahmers.
I suppose we should keep the full on felony sex offense approach for anyone–including under-18s, who commercially exploit an under-18. It would produce draconian results in some instances (e.g., a 16-year-old who sold pics of his 17-year-old gf to some dirty old man could be put away for a long time, but there’s a pretty clear line between fooling around and dealing in child pr0n and we should, as a society, draw the line somewhere)
Lots of people screw around at age 16 and turn out fine. I find your position utterly incomprehensible.
Turning out fine after engaging in sexual activity before you’re emotionally and mentally mature enough to handle the responsibility and without the proper commitment does not run off someone’s back like water. Is it so incomprehensible to say that this is unwise and will have future consequences?
I understand a lot of people might be defensive about this because of their personal experiences and past, but let’s be honest here. Actions have consequences, and there’s good reasons people say to wait.
I can’t believe what I’m reading here. You mean there’s actually some support for this foolishness? How ghastly.
This seems like an odd mix of standards. Too young to have sex but old enough to be convicted of a crime for videotaping the act? This is something that should have been handled by the families. The state has not business getting involved here.
Actually, under the law they’re old enough to have sex under state law, but not old enough for the act to be recorded without running afoul of federal law.
Which, no, it doesn’t make any more sense that way than the other.
The consequences should NOT be criminal prosecution.
I didn’t have sex at 16, and I didn’t take pictures of myself having sex. I am being completely honest when I tell you these kids showed poor judgement, but it is and should be far from criminal.
Isn’t this the exact reason that the pardon power exists? A law is written for good ends, while the circumstances of a particular case lead to a travesty and require a remedy.
Jeb should have taken care of this earlier but now its Crist’s turn to act.
Oh phooey, I see its not a state charge. Well, a petiton to Bush is in order then.
Double phooey, it is a state charge. Disregard my backwalking.
not to mention, potentially running afoul of the Commerce Clause as defined by conservatives Scalia and Kennedy. But that’s a different matter.
Not if those emails passed through servers in a different state. Everyone agrees that the commerce clause can cover things which cross state lines. Chances are they did. The indictment proabably showed the jurisdictional facts.
The consequences should NOT be criminal prosecution.
That’s why its legal for two 17 year olds to engage in sexual activity, even though it’s unwise. Filming this, however, violates child porn laws.
Look, if you have a problem with child porn laws, come out and say it. We either have them or we don’t, you can’t suddenly decide the depiction of underage children engaging in sexual activity is fine just because they really like each other.
How we got to a place where people are questioning the prosecution of kids taking x-rated pictures of themselves I do not exactly know.
If these two get a pass because they took pictures of themselves, you’ve just told child pornographers how to create immunity for themselves.
Then, I suppose, Catholic priests who seduced boys aren’t so terrible? I mean, most of the “priestly pedophilia” was really just priestly homosexuality, since it involved teenagers 99.7% of the time, and not prepubescent minors. Is it OK for adults to have sex with teenagers, since lots of people screw around at age 16 and turn out fine?
Or is it only homosexual adult-sex-with-teenagers that is bad?
I think it’s called permissiveness.
If you are a child incapable of having sex below the age of 18 without damaging your psyche, at what age are you permitted to enlist in the armed forces in the US?
And at what age are you allowed to be deployed on active service?
If I can be allowed two bites at the cherry (sorry), at what age can you drive a car on a public highway and at what age can you own a firearm?
Hey did someone say ”homosexual adult sex with teenager”?
I don’t know how you leaped all the way to that, since the subject here was two teenagers.
I have a problem using this case as any kind of test case on child pornography laws. I never knew myself to have a problem with child porn laws, but I obviously have a problem with the selection of this case for prosecution.
Sorry, I think intent is important.
I look at what these two kids did, and they were stupid but they didn’t hurt anyone and they had no intent to arouse others.
On the other hand, I look at the guys that videotape and distribute crotch shots of High School cheerleaders at football games. I find that disgusting, abusive, and harmful. Yet I believe that isn’t illegal.
Forgive me for not finding all the laws sensible or perfect.
at what age are you permitted to enlist in the armed forces in the US?
And at what age are you allowed to be deployed on active service?
Uh… 18.
We have to have basic standards for laws to mean anything at all. Like I said above: 18 might be arbitrary or excessively general as a cutoff, but we have to have a cutoff in order for there to be a law. You can’t make exceptions just because people really like each other or we get exactly what this commenter points out:
People here seem not to be thinking of this in terms of law and reasonable structure of justice, but in terms of “gosh, what if I got caught” or “well I did crazy stuff as a kid.”
If you want these two to be able to do this and face zero legal challenges you are objectively in support of child pornography – you just are trying to create a special category of “well, if they really like each other a lot.”
That is arrant nonsense.
Far more damage has been done to the futures of these two individuals by this case being prosecuted than would have been done had it been overlooked.
To suggest that anyone who sees fault in the conduct of the klaw in this case must ipso facto be in support of child pornography is dishonest and stupid.
I agree with you there. However, I think we are on opposite sides of what constitutes reasonable.
Whatever happened to not being able to define pornography, but knowing it when you saw it?
RWS:
Daryl Herbert:
Glad I’m not the only one who found that statement a bit…let’s be kind and say inaccurate. I could agree with “isn’t her only problem” but the “least” of her problems? I don’t think so.
TW: least49. Heh.
I disagree, being charged with a felony sex offense is extremely serious. Lots of people screw around at age 16 and turn out fine. I find your position utterly incomprehensible.
I guess you would have to have been a 16 yr old girl at one time and also worked with young women for many years. Trust me when I say that low self esteem and a perverted view of sex affects young girls their whole life in a way that no felony could.
A felony conviction will affect their self-esteem much more in the long run, is my guess.
Unless they find it “empowering” flipping burgers at age 40, because they can’t get an actual job with a felony sex offense on their record.
Like I said in the post, I think the judge acted correctly—though his rationale is silly. The person or persons who made the decision to prosecute here should be run out of town on a rail. This was nothing more than an easy sex-offense conviction to pad the stats, at the expense of a couple of teens.
So to answer a question from above, yes, I believe we have a problem with our child porn laws if they are going to be applied to situations in which no distribution was intended, and which no exploitation took place—other than the way the prosecutor exploited this case for political capital.
Chris Taylor: Is it so incomprehensible to say that this is unwise and will have future consequences?
Nobody said there wouldn’t be any consequences at all. It is possible, you know, for there to be some consequences, and still turn out fine.
Chris Taylor: Turning out fine after engaging in sexual activity before you’re emotionally and mentally mature enough to handle the responsibility and without the proper commitment does not run off someone’s back like water.
He says in response to my point that being a registered sex offender is a thousand times worse than having sex at 16. Like being a REGISTERED SEX OFFENDER rolls of your back. Right.
Chris Taylor: If you are opposed to child porn, you are opposed to child porn, whether it was voluntary or not, or if it was for private consumption or not. Just because these kids were fairly old doesn’t change that.
We aren’t allowed to make any sort of distinctions. Shades of gray are illegal in ChrisWorld.
Chris Taylor: Look, if you have a problem with child porn laws, come out and say it. We either have them or we don’t, you can’t suddenly decide the depiction of underage children engaging in sexual activity is fine just because they really like each other.
No middle ground. You’re either with Chris Taylor and the sex-haters, or you’re a child molester.
Chris Taylor: How we got to a place where people are questioning the prosecution of kids taking x-rated pictures of themselves I do not exactly know.
I heard they were fucking, too. That’s a life sentence right there. Or maybe we got here because we decided that we shouldn’t criminalize consensual sexual activity. Adults can consent to sex. Teenagers can consent to sex with other teenagers. Taking dirty pictures is just a kind of sexual activity.
Chris Taylor: If you want these two to be able to do this and face zero legal challenges you are objectively in support of child pornography – you just are trying to create a special category of “well, if they really like each other a lot.â€Â
Nobody said they wanted the film to be legal. Nobody said they wanted it sold in stores or streamed over the internet.
Chris Taylor: I understand a lot of people might be defensive about this because of their personal experiences and past
And if we disagree with Chris, it’s because we’re sexually traumatized and incapable of thinking rationally.
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Chris Taylor is retarded. His moral development is stuck at the six-year-old level. I’m not throwing out cheap insults–I’m going to demonstrate that what I wrote above is literally true.
Chris Taylor: People here seem not to be thinking of this in terms of law and reasonable structure of justice, but in terms of “gosh, what if I got caught†or “well I did crazy stuff as a kid.â€Â
How can he use the word “justice” to describe locking up these kids for years and then making them register as sex offenders? He doesn’t think justice has anything to do with fairness?
Chris Taylor: My thought is that the law has to have tangible, absolute standards in order to be enforced.
I guess not.
Does this sound familiar? It describes Chris’ philosophy exactly.
Given the following hypothetical:
Here is how a stage 1 child would react:
The average 10-year-old is at stage 2. Meaning the average 10-year-old has more depth and nuance, when it comes to talking about morality, than Chris Taylor.
Chris, aren’t you curious why so many of us disagree with you, and where our ideas come from?
Or do you think we’re just bad people who disobey authority because we’re weak or immoral?
Look, its FELONY. F-E-L-O-N-Y.
There’s the problem. Its not about finding loopholes for child pornographers and its not about whether 16 year olds should be having sex.
This is one of those legal black holes that folks who wander to close to the “intent” of the legislation get sucked in. These kids were stupid and irresponsible but to charge them with child porn (again, a FELONY) has the potential to ruin their lives. They will have to disclose a felony conviction on job applications, they will not be able to vote, they wil be unable to buy a firearm and I’m pretty sure in Florida they’d have to register as sex offenders.
In conclusion, the case should never have been prosecuted. I do hope Crist steps in and pardons these kids.
Thank you for your kind words, Daryl, and I find the use of a psychologist to promote the idea that having absolute objective morals as childish is odd, to say the least.
If you don’t believe in absolutes, why are you trying to convince me I’m wrong?
These kids were stupid and irresponsible but to charge them with child porn (again, a FELONY) has the potential to ruin their lives.
Yes, breaking the law can do that. It’s a felony to murder – does the fact that charging a killer with the crime ruin his life mean we ought not do it? You’re approaching this from the wrong side. Either what they did was wrong… or its not.
One more time: just because they really like each other doesn’t somehow make this any less a crime.
Something can be “wrong” without warranting a felony conviction.
I have a problem with the entirety of child porn law. I just don’t get how seeing a naked child is the worst thing imaginable. It’s unseemly as hell, but worth locking people up for years and years followed by a lifetime of panicked supervision? I’m not so sure. I understand why the documentation of criminal acts should be banned (film of the rape of a child shouldn’t have any more right to be shown than the film of a rape of an adult,) but I just don’t understand this need to keep people from exploiting themselves. I also reject the underlying thesis that says seeing child porn would make me into a pedophile. I’ve seen gay porn and it hasn’t made me gay, war movies didn’t make me enlist, and watching Titanic didn’t turn me into a Celine Dion fan. Hell, I read Protein Wisdom and don’t intend to vote for a Republican ever.
Let children take pictures of themselves, sell them, and afford college. Then we can avoid those college loan scandals and their long careers as strippers, and these teen models can go on to what they wanted to do all along: go to college to fuck like bunnies.
I’m being somewhat serious.