April 08, 2004

PG Is a Prude

by PG

From last Monday's Pittsburgh Post-Gazette:

State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet. [...]
She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.

And a behind-the-times prude, at that; the rest of the blogosphere passed judgment on this story over a week ago. However, I seem to be one of the few people who thinks that the prosecutor in the case isn't completely wrong.

Most of the incredulity has focused on the charge of sexual abuse, which stems from the young woman's having photographed herself "performing a variety of sexual acts." I agree that this part of the prosecution is absurd, as "self abuse," a euphemism for masturbation, ought not be a crime any more than suicide ought to be.

The possession of child pornography is a little more problematic. If this fifteen-year-old can ensure that the photographs are seen by no one but herself -- a difficult but not impossible requirement -- then there's no reason why she shouldn't be able to possess them. On the other hand, if she used a pornographic picture (i.e. depicting her engaging in sexual practices or exhibiting her genitals) as a desktop image on a computer accessible to others, she is essentially guilty of...

Dissemination of child pornography. This is the charge that is justified by the facts, at least as presented in the article. Actually, I would advise the prosecutor to drop the other charges; they're not only illegitimate, they distract from and undermine the aspect of the case that passes the laugh test.

However, other blawggers disagree even about the dissemination. Michael Froomkin says, "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." Prof. Froomkin's argument is flawed by his making assumptions that are not verified by the few details provided by the article, such as that the dissemination was not connected to profit-making.

One of his suppositions is directly contradicted by the facts we are given; he scoffs at the idea of prosecuting the young woman's 15-year-old boyfriend or girlfriend for having received the pictures, yet the article says "She then sent the photos to people she met in chat rooms." In other words, these were not people she knew, and she was breaking one of the basic rules of internet safety, increasing the likelihood that she might be abducted and assaulted.

Eugene Volokh adds, "[I]t hardly seems to be much of a service to her -- who is after all the supposed victim as well as the perpetrator -- or to the fight against child porn more broadly," though Prof. Volokh premises his disapproval on its being "a full-bore prosecution" rather than "one of those scare-the-kid-a-bit prosecutions."

But as one TalkLeft commenter pointed out: "Seems to me she was distributing child pornography. They are going to aggressively pursue those that received it, so why not charge the distributor?"

This is the crux. As Froomkin admits, "child porn is an unusually strict liability crime, in which possession alone, without intent or even knowledge, constitutes the offense." People who received the photos as attachments and saved them without bothering to click on them later -- as I've done with attachments when in a hurry to clear out my e-mail -- may be in possession of child pornography without intent or knowledge, and subject to prosecution.

The alleged self-pornographer thus put other people at risk of criminal penalties, including fines, prison terms and felony records.

One might argue that the strict liability regime is inappropriate, or that penalties for possession of child pornography depicting teenagers are excessive. Nonetheless, this is the current state of the law. Even if the sentencing judge or jury is sympathetic to these arguments, the law frequently mandates punishment.

The Supreme Court said in Osborne v. Ohio that "[the state] hopes to destroy a market for the exploitative use of children. [...] evidence suggests that pedophiles use child pornography to seduce other children into sexual activity." In other words, the harm exists not only directly to the child depicted in the particular pornographic material, but also indirectly to other children.

Obviously this young woman cannot be tried as an adult, and therefore the punishment she receives is not going to be the same as what is normally meted out to disseminators of child pornography. This is all to the good, and I hope that the end result, if she is found guilty, is more along the lines of forcing her guardian to monitor her activities closely and getting her counseling. But child pornography should not become acceptable merely because the subject of the pornography consents to having it made -- the whole point is that children cannot give meaningful consent to such activity.

April 8, 2004 10:00 AM | TrackBack

I could swear I've seen case law that rejected similar prosecutions, i.e., "aiding and abetting" one's own statutory rape, because you cannot charge the person who is supposed to be protected by the statute with victimizing himself or herself. This isn't a matter of "consent" if the girl took her own pictures and disseminated them herself. Of course it's not activity to be encouraged, but it's also probably not the kind of activity that law was seeking to criminalize. This seems to be a case of a prosecutor's office with too much time on its hands.

Posted by: Geoff Brown at April 8, 2004 11:51 AM

It so happens that my submission to De Novo's next symposium concerns the Latrobe case, so I won't rehearse my arguments in full now. However, if anything, I think that Froomkin and Volokh substantially understate the case. I think that the Latrobe prosecution is utterly unlawful. Consider, for example, In re Meagan R., 49 Cal. Rptr. 2d 325, 330 (Cal. Ct. App. 1996) (holding that 14-year-old, "as the victim of the statutory rape, cannot be prosecuted on that charge, regardless whether her culpability be predicated upon being a coconspirator, an aider and abettor or an accomplice given her legislatively protected status"). As with statutory rape, child pornography is criminalized because the victims are thought to be incapable of appreciating the harms that flow from sexual conduct and are susceptible to manipulation. This is why minors are considered incapable of giving legal consent to sexual relations. To turn around and prosecute the 15-year-old in question amounts to prosecuting her for an act that the law says she does not have the capacity to comprehend. She's being prosecuted under a legislative scheme designed for her own protection. Consider also the ridiculous consequences of prosecution. If convicted of such an offense, in many states, one would have to register as a sex offender. Imagine that: bearing the onus of sex offender registration for having photgraphed oneself nude. Wow!

Posted by: The Curmudgeonly Clerk at April 8, 2004 12:40 PM

Obviously this young woman cannot be tried as an adult ...

Why not? Are you resting this conclusion on the fallacy that if she is a child for the purposes of the charges with regard to being in the photos, then she can't be tried as an adult? Of course she can; they're two separate legal analyses.

Under PA law, she's charged with one second-class felony and two third-class felonies. She can get up to 24 years in prison. And then, since she sexually assaulted a child, she's subject to mandatory reporting and potential community notification under PA's Megan's Law. Just to keep her ultra-safe from herself.

Posted by: Mithras at April 8, 2004 01:28 PM

I disagree with not holding minors responsible for having represented themselves as adults, in cases where another person is being prosecuted for having been dumb enough to believe them. This holds for child pornography, statutory rape and the sale of alcohol and nicotine to a minor.

If we change these laws so there is no longer strict liability for the adults, then I would change my mind and not wish to have minors charged.

But as it is, retailers are penalized for not looking closely enough at a fake ID; people in chat rooms are penalized for receiving these photographs; 18-year-olds are penalized for believing 14-year-olds who say, "Of course I'm 18," and wave the same fake ID to prove it.

All of these laws are intended to protect minors from Grown Up Stuff: sex, alcohol, cigarettes. Any adult who enables minors to access these things is prosecuted, even if she didn't know they were minors or even did her best to ensure that they weren't. Why is it a good idea to let the kids play in grown up land without consequences, while making it a crime for adults to let them do so?

I'm not arguing in favor of imposing adult-sized penalties on juveniles; minors should be treated like minors, consistently. But they also shouldn't be treated like beings without any responsibility for their actions. Doing so essentially encourages teenagers to help or trick adults into breaking the law, because only the adults will get into trouble if they're caught. What a great way to raise people who will become responsible adults!

We have punishment for crime partly as a way to discourage people from committing the crime. If there are no consequences to oneself for carrying fake ID, there's no reason not to do it (and of course, as with other crimes, many people do it even with the possibility of punishment).

Mithras, they may be two analyses, but it's just one crime. To put a person into two different categories for the purpose of a single prosecution treads close to double jeopardy.

Posted by: PG at April 8, 2004 02:02 PM

To put a person into two different categories for the purpose of a single prosecution treads close to double jeopardy.

She's already in two different categories - victim and perpetrator. The determination of which legal category someone falls in can be and often is counterintuitive.

Posted by: Mithras at April 9, 2004 08:12 PM

There seems to be a widespread assumption that crimes relating to child pornography have to have a victim in the traditional sense. I don't think that's true. People have been prosecuted for possession and dissemination even in cases where the person depicted is already dead (in which case the victimization occurred when the person was exploited and cannot continue in the form of causing humiliation and psychological damage because the person is already, y'know, dead).

I've stated already that no crime of making or possessing child pornography exists in this case, but dissemination is a different problem. If the alleged perpetrator's peers also forwarded these pictures, they would not be charged as adults, so why should she?

Posted by: PG at April 11, 2004 02:49 PM

I am perplexed by your last comment. I honestly cannot make sense of it. You write:

There seems to be a widespread assumption that crimes relating to child pornography have to have a victim in the traditional sense. I don't think that's true. People have been prosecuted for possession and dissemination even in cases where the person depicted is already dead . . . .

At the risk of sounding impolite, I cannot imagine what this point is supposed to demonstrate. Some serious crimes have no statute of limitations. Despite the fact that a particular victim of a child porn offense might be dead, that hardly negates his or her victim status or the criminality of the victimizing. By your reasoning, murder is also a crime without "a victim in the traditional sense," because the victim is dead. Victims hardly need go on living in order to justify punishing their victimizer. In short, I don't think that your attempt to divorce child porn offenses from their victims makes much sense.

Posted by: The Curmudgeonly Clerk at April 12, 2004 04:08 PM

Perhaps I didn't explain clearly. Obviously, the offense in a murder is that the victim had his life taken away against his will. The offense in *making* child pornography is that a child is exploited when she is too young to give consent to this depiction of herself. There are stiff penalties for *possessing* and *disseminating* child pornography because this victimization is due to the child-become-adult's knowledge that these images of her exist; if a person promptly alerts law enforcement to the existence of these images, and has them destroyed, then he is not likely to be prosecuted.

If the person who was exploited is no longer alive, then that second part of the harm no longer exists because the person no longer can have that psychologically destructive knowledge. However, we still prosecute people for possession and dissemination of child porn even of children who are now dead, so clearly we find possession and dissemination problematic even if there isn't someone who is being victimized by it.

Posted by: PG at April 12, 2004 07:13 PM

Hmmmm . . . I am not so sure that child pornography laws are aimed at the harm you suggest (i.e., continuing emotional distress at the thought of such images being available), even in part. I would have assumed that the harm aimed at by production-related offenses are the child-sex-related acts (which are deemed malum in se even without any time-elapse regrets) and that the possession and dissemination offenses exist in order to (a) destroy any market in such images that might lead to further production, (b) to prevent pedophiles from gaining materials that might dispose them to act on their impulses. But I could be mistaken. Perhaps, we should look at the legislative history and see if it tells us anything.

Posted by: The Curmudgeonly Clerk at April 13, 2004 10:51 AM

(a) destroy any market in such images that might lead to further production, (b) to prevent pedophiles from gaining materials that might dispose them to act on their impulses

If these were legitimate constitutional rationales, then the legislation that prohibited even digital, not-made-using-actual-children child pornography would have passed SCOTUS muster. But it didn't.

The majority said that the possibility of crimes (your part B) is not enough, and while I'm not sure they explicitly addressed A, they didn't OK the law based upon that argument, which was made by the law's proponents on the basis of 'people can't distinguish between virtual and real child porn."

In short, it appears that harm to identifiable persons is the only constitutional reason for child pornography laws; Kennedy said that if the government wants to go after porn that doesn't involve such harm, it needs to use obscenity and other rationales.

Posted by: PG at April 14, 2004 11:25 AM

The case that you have in mind is Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), but I think that you are misreading it. That case said that such rationales were constitutionally inadequate concerning a statute that pertained to virtual child pornography (i.e., not child pornography). Id. at 239-41. But Justice Kennedy's majority opinion does not intimate let alone hold that such rationales are impermissible where bona fide child pornography is concerned. Indeed, the opinion indicates the very opposite. For example, Kennedy explicitly notes the validity of measures aimed at destroying the market in actual child pornography:

[New York v.] Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were "intrinsically related" to the sexual abuse of children in two ways. First, as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. "The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product." Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came.

Later, in Osborne v. Ohio, the Court ruled that these same interests justified a ban on the possession of pornography produced by using children. "Given the importance of the State's interest in protecting the victims of child pornography," the State was justified in "attempting to stamp out this vice at all levels in the distribution chain." Osborne also noted the State's interest in preventing child pornography from being used as an aid in the solicitation of minors. The Court, however, anchored its holding in the concern for the participants, those whom it called the "victims of child pornography." It did not suggest that, absent this concern, other governmental interests would suffice.

In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not "intrinsically related" to the sexual abuse of children, as were the materials in Ferber. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.

Id. at 249-50 (bold font emphasis added and internal citations omitted).

In addition, while the Court specifically rejects the notion that a ban on virtual child pornography (i.e., not child pornography) can be sustained on the basis that it might abet or incite pedophilia, id. at 251-53, it does so because the speech involved enjoys First Amendment protection. Actual child pornography, of course, does not enjoy any such protection, which in turn suggests that such a legislative rationale is not necessarily unsustainable where genuine child pornography is concerned.

Ashcroft v. Free Speech Coalition does indicate that the harm you identify is among those that the Court has in mind. But the opinion also explictly embraces the market rationale as well and by no means precludes the abet/incitement rationale(s) in instances of actual child pornography. My guess is that Ferber and Osborne, as well as the legislative history of the statutes involved, should be consulted.

Posted by: The Curmudgeonly Clerk at April 28, 2004 08:50 PM
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