The Curmudgeonly Clerk is gainfully employed as a law clerk for a federal District Judge in Texas and curmudgeons at his one-year-old blog - Ed.
Child pornography-related offenses comprise one area of the law that is bound to grow as the Internet becomes ever more omnipresent. Professors Froomkin and Volokh have both recently commented on a case that, perhaps, highlights the futility of child pornography laws where older teens are concerned. According to the 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.
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. * * * She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.
The Post-Gazette article is rather cursory. Accordingly, one can only speculate as to what would motivate the authorities to charge a person normally conceived of as "the victim" of the charged offenses. It would seem that the charges against the 15-year-old are likely just being employed as a means of prosecuting her online (and presumably elder) paramours. The article also reports that, "[p]olice said they are trying to identify all the people who receive photos from the girl." Pretextual charges against the victim, for example, would allow law enforcement agents to seize her computer in order to make those identifications, which is precisely what has been done.
It is not clear to me that the prosecution of such recipients would be just in the absence of proof that they solicited what they knew to be child pornography, but as Froomkin notes possession of child pornography "is an unusually strict liability crime." See, e.g., State v. Peterson, 535 N.W.2d 689, 690-92 (Minn. App. 1995) (discussing parameters of strict liability with regard to child pornography-related offenses and upholding strict liability offense); but cf. State v. Maxwell, 767 N.E.2d 242, 247 (Ohio 2002) (intimating that a jury might reasonably find deletion of child pornography from one's computer to be a circumstance that would support a claim of download by mistake).
Setting aside this concern, both Froomkin and Volokh evince doubts about the propriety of prosecuting the 15-year-old, and Volokh suggests an appropriate counter-example. He observes that prosecuting the girl in question is untoward for precisely that same reason that "prosecu! ting sexually promiscuous 15-year-olds who have sex with adults for 'aiding and abetting statutory rape' doesn't seem quite."
Were I this 15-year-old's counsel, I would argue much the same thing, but with substantially greater vigor. For, if anything, Professor Volokh understates his case. It is not just that this girl should not be prosecuted, her prosecution is actually unlawful in my opinion. See 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").
The whole point of criminalizing sex with minors, after all, rests on the notion of protecting them from themselves. See People v. Hastings, 938 P.2d 78, 81 (Colo. Ct. App. 1998) (noting that "the purpose underlying [the] crime of statutory rape is to protect children from the consequences of acts they cannot comprehend"). Much the same can be said of offenses concerning the sexual abuse of minors and child pornography.
Moreover, the statutory rape parallel suggests an additional policy-related rationale for rejecting the sort of prosecution at issue. As the California court of appeals noted in In re Meagan R., allowing prosecution of "the victim" would threaten the very viability of statutory rape as an offense altogether by discouraging such persons from coming forward. See 49 Cal. Rptr. 2d at at 330 n.8 ("Confronted by the possibility of criminal prosecution predicated upon vicarious liability, it is doubtful a minor victim of a violation of the statute would be likely to report the offense to authorities."). This observation likewise applies with equal force to the laws concerning sexual abuse of minors and child pornography.
Indeed, what renders the Pennsylvania prosecution even more curious is that the foregoing legal principles are of longstanding pedigree. See The Queen v. Tyrrell, 1 Q.B. 710, 712-13 (1893) (reciting the foregoing rationales for disallowing prosecution of female for aiding and abetting male to have "unlawful carnal knowledge" of her); Gebardi v. United States, 287 U.S. 112, 116-23 (1932) (rejecting Mann Act prosecution of woman transported across state lines for the purpose of prostitution advanced on theory that she was a co-conspirator in her interstate transport solely on the basis of her consent thereto). The principles at work in Tyrrell and Gebardi have hardly fallen into desuetude. See State v. Lucas, 795 N.E.2d 642, 644-48 (Ohio 2003) (citing both cases, as well as In re Meagan R., to similar legal effect in different factual context).