July 30, 2004

Once Again, It's On

by PG

Clarification: In both the case previously examined (Latrobe), and in this new one (Roanoke), I oppose charging the teenagers who photographed themselves nude with production and possession of child pornography. I explained why in my De Novo post.

A primary justification for charging the Latrobe girl with dissemination is that she did it so indiscriminately, sending pictures to people she met through chatrooms. This presumably is how her offense was discovered: either a law enforcement agent lurking online got her to send a picture, or her photos were found in the child pornography cache of someone who got caught in a different case. She therefore made it likely that someone to whom she sent the pictures was an unknowing and thus unwilling recipient of child pornography, instead of legal adult pornography.

The dissemination facts in the Roanoke case are very different. These two girls took topless photos of themselves and sent them to their boyfriends. The initial and intended recipients of the pornography were themselves minors (I assume from their being high school students, and not being prosecuted as adults would be), and knew that the people depicted in the photos were not adults.

The boys decided to forward the pictures to all and sundry; they even appeared on Internet pornography sites until one girl's mother discovered this and informed the websites that the photos were of minors, at which point the photos were removed. Had the boys kept the photos to themselves, they never would have been discovered unless the boys got caught in a separate case and their computers were seized.

I agree with the Clerk that prosecution of two young women who sent child pornography only to knowing recipients, and who did not intend their pictures to be widely viewed, is wrong. An issue that he does not address, however, is the prosecution -- or rather, lack thereof -- of the girls' boyfriends. (Curmudgeonly commenter "Ken" does note this disparity.)

According to the news story, "Only one boy who received the pictures was charged with possession of child pornography. That charge was taken under advisement in May and will be dismissed if he stays out of trouble."

I have trouble not seeing this as an example of sexist prosecution. Charging the girls for being dumb enough to trust their boyfriends, while essentially letting the boys off for having turned their girlfriends into internet pinups, is a complete misdirection of blame. The pornography had no potential to do harm when it was a private matter between two girls and their boyfriends, but once it began to be circulated publicly, the likelihood of trouble increased -- with its most obvious manifestation in the ability of law enforcement to have discovered the photos.

But consider the other consequences. Every person who has those pictures on his computer may now be charged with possession of child pornography, even if he is unaware that the persons depicted are minors. The girls who produced the photographs didn't cause this; the boys did.

Conclusion: The Clerk and I reach essentially the same result in this case (the girls should not be prosecuted), but for different reasons. I think we are both being consistent.

Paralleling child pornography to statutory rape, the Clerk sees no reason why the minor involved in the former should be subject to prosecution, while the minor involved in the latter is not. He gives a good reason for why statutory rape victims should be free of the fear of prosecution: "By criminalizing the conduct of the victim of the crime, the state may discourage future victims less willing to come forward."

As I said in comments to my earlier post, as long as adults are prosecuted on a strict liability basis for mistaking children to be adults, children should bear responsibility for having done their best to appear as adults. A statutory rape "victim" who produced fake identification and otherwise went to some effort to convince her partner that she was an adult is hardly likely to come forward about the crime (unless she does so for reasons of vengeance), any more than a high school boy buying liquor with a fake ID is likely to turn in the retailer he successfully fooled.

Simply because minors are never prosecuted in statutory rape cases, no matter how much they deceived their "abusers," is not a justification for extending this injustice to child pornography cases. On the other hand, minors who did not, whether through action (fake IDs) or negligence (failing to notify), mislead others into mistaking their ages should not be held responsible for any crime, which is why I disagree with the decision to prosecute the Roanoke girls.

July 30, 2004 12:51 AM | TrackBack